| SooperKanoon Citation | sooperkanoon.com/1177643 |
| Court | Karnataka Kalaburagi High Court |
| Decided On | Aug-06-2015 |
| Case Number | Criminal Appeal No. 3636 of 2011 |
| Judge | A.V. CHANDRASHEKARA |
| Appellant | Chandpasha |
| Respondent | The State through P.S.I, Excise P.S., Yadgir |
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]criminal procedure code, 1973 - section 313, section 374(2) - narcotic drugs and psychotropic substances act, 1985 - section 8, section 25, section 42, section 42(1) and (2), section 57, section 50, section 20 €“ seizure of contraband substance €“ order of conviction - search was conducted in the house of accused/appellants who were found to be in possession of ganja - case was registered against appellants for offences punishable under sections 8 and 25 of the act, 1985 punishable under section 20 of the act, 1985 - sessions judge, convicted appellant/accused for offences punishable under section 8 and 25 punishable of the act, 1985 €“ hence instant appeal issue is - whether trial court has considerate evidence in right prospective keeping in mind.....Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";if (trim($desc['Judgement']['casenote'])) {echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123](prayer: this criminal appeal is filed under section 374(2) of cr.p.c., praying to allow the appeal set aside the judgment and order passed in spl. case no. 1/2011 on the file of district and sessions judge, at yadgiri, dated 22.7.2011. convicting the appellant/accused for the offences p/u/s 8 and 25 punishable u/s 20 of n.d.p.s. act.) 1. first accused of a criminal case bearing spl. case no. 01/2011, which was pending on the file of the court of district and sessions / special judge, yadgiri, has filed this appeal under section 374(2) of cr.p.c. accused has been found guilty of offence under section 8 of n.d.p.s. act punishable under section 20 of the said act, 1995. he is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of rs. 1.00 lakh vide judgment dated.....Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)
1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. The facts leading to the following of this case are as follows:
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(b) Whether the judgment of conviction and sentence is sustainable in law and on facts?
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(c) What order?
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 15include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
REASONS
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 16include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 17include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1st accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 18include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2nd accused was the father of the 1st accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 19include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 20include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 21include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 22include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 23include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 24include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1st accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1st accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 25include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
15. PW-1 has further deposed that when all of them entered the house, the 1st accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1st accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 26include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1st accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1st accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 27include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 28include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 29include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 30include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1st accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1st accused in Vidyanagar.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 31include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 32include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1st accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 33include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1st accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 34include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 35include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 36include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 37include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 38include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 39include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 40include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 41include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2nd accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2nd accused was the father of the 1st accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2nd accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2nd accused.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 42include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2nd accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 43include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1st accused.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 44include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 45include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 46include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2nd accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2nd accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 47include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 48include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
35. In the result, the following order is passed:
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 49include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
ORDER
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 50include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.
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The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p style="text-align: justify;">(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p style="text-align: justify;"> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p style="text-align: justify;"> 2. The facts leading to the following of this case are as follows:</p><p style="text-align: justify;"> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p style="text-align: justify;"> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p style="text-align: justify;"> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p style="text-align: justify;"> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p style="text-align: justify;"> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p style="text-align: justify;"> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p style="text-align: justify;"> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p style="text-align: justify;"> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p style="text-align: justify;"> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p style="text-align: justify;"> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p style="text-align: justify;"> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p style="text-align: justify;"> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p style="text-align: justify;"> (c) What order?</p><p style="text-align: justify;"> REASONS</p><p style="text-align: justify;"> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p style="text-align: justify;"> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p style="text-align: justify;"> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p style="text-align: justify;"> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p style="text-align: justify;"> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p style="text-align: justify;"> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p style="text-align: justify;"> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p style="text-align: justify;"> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p style="text-align: justify;"> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p style="text-align: justify;"> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p style="text-align: justify;"> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p style="text-align: justify;"> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p style="text-align: justify;"> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p style="text-align: justify;"> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p style="text-align: justify;"> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p style="text-align: justify;"> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p style="text-align: justify;"> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p style="text-align: justify;"> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p style="text-align: justify;"> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p style="text-align: justify;"> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p style="text-align: justify;"> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p style="text-align: justify;"> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p style="text-align: justify;"> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p style="text-align: justify;"> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p style="text-align: justify;"> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p style="text-align: justify;"> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p style="text-align: justify;"> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p style="text-align: justify;"> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p style="text-align: justify;"> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p style="text-align: justify;"> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p style="text-align: justify;"> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p style="text-align: justify;"> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p style="text-align: justify;"> 35. In the result, the following order is passed:</p><p align="center">ORDER</p><p style="text-align: justify;"> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'casename_url' => 'chandpasha-vs-excise-yadgir', 'args' => array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) ) $title_for_layout = 'Chandpasha Vs the State Through P S I Excise P S Yadgir - Citation 1177643 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '1177643', 'acts' => null, 'appealno' => 'Criminal Appeal No. 3636 of 2011 ', 'appellant' => 'Chandpasha ', 'authreffered' => null, 'casename' => 'Chandpasha Vs. The State through P.S.I, Excise P.S., Yadgir', 'casenote' => 'Criminal Procedure Code, 1973 - Section 313, Section 374(2) - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8, Section 25, Section 42, Section 42(1) and (2), Section 57, Section 50, section 20 €“ seizure of contraband substance €“ order of conviction - Search was conducted in the house of accused/appellants who were found to be in possession of Ganja - case was registered against appellants for offences punishable under Sections 8 and 25 of the Act, 1985 punishable under Section 20 of the Act, 1985 - Sessions Judge, convicted Appellant/Accused for offences punishable under section 8 and 25 punishable of the Act, 1985 €“ hence instant appeal Issue is - Whether trial Court has considerate evidence in right prospective keeping in mind mandatory provisions of Sections 42 and 57 of the Act 1985 and whether judgment of conviction and sentence is sustainable in law Court held - It is not the case of prosecution that 2nd accused was present when alleged search was conducted in the house - questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever - 2nd accused has been examined as though he was present at the time of seizure €“ so, case of prosecution suffers from serious illegality and factual infirmities and they have been ignored by trial court - judge has also ignored inordinate delay in sending sample ganja to chemical analyst - there was no chance of changing characteristics of sample and no prejudice is caused to accused due to delay in sending same - This court is unable to accept same - weight of ganja found in packets confronted to PW-1, cannot be ruled out - prosecution has not been able to prove guilt of accused beyond all reasonable doubt - judgment of conviction and sentence will have to be set aside - appeal allowed. Para 34, 35 Cases Referred; (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh. (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana. (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana Sukhdev Singh .V. State of Haryana reported in 2013(1) SCC (Crl.) 933 Karnail Singh .V. State of Haryana ([2009] 8 SCC 539) Comparative Citation: 2015 (4) KCCR 3594, ', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => null, 'counseldef' => null, 'court' => 'Karnataka Kalaburagi', 'court_type' => 'HC', 'decidedon' => '2015-08-06', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'A.V. CHANDRASHEKARA', 'judgement' => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.</p><p> 2. The facts leading to the following of this case are as follows:</p><p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.</p><p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.</p><p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.</p><p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.</p><p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;</p><p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.</p><p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.</p><p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.</p><p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.</p><p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;</p><p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?</p><p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?</p><p> (c) What order?</p><p> REASONS</p><p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.</p><p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.</p><p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.</p><p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:</p><p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'</p><p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.</p><p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.</p><p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.</p><p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.</p><p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.</p><p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.</p><p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.</p><p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.</p><p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.</p><p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.</p><p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.</p><p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.</p><p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.</p><p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.</p><p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:</p><p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'</p><p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.</p><p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.</p><p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.</p><p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.</p><p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.</p><p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.</p><p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.</p><p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.</p><p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.</p><p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.</p><p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.</p><p> 35. In the result, the following order is passed:</p><p>ORDER</p><p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'The State through P.S.I, Excise P.S., Yadgir', 'sub' => null, 'link' => null, 'circuit' => null ) ) $casename_url = 'chandpasha-vs-excise-yadgir' $args = array( (int) 0 => '1177643', (int) 1 => 'chandpasha-vs-excise-yadgir' ) $url = 'https://sooperkanoon.com/case/amp/1177643/chandpasha-vs-excise-yadgir' $ctype = ' High Court' $content = array( (int) 0 => '<p>(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to allow the appeal set aside the judgment and order passed in Spl. Case No. 1/2011 on the file of District and Sessions Judge, at Yadgiri, dated 22.7.2011. Convicting the Appellant/Accused for the offences P/U/S 8 and 25 punishable U/S 20 of N.D.P.S. Act.)<p> 1. First accused of a criminal case bearing Spl. Case No. 01/2011, which was pending on the file of the Court of District and Sessions / Special Judge, Yadgiri, has filed this appeal under Section 374(2) of Cr.P.C. Accused has been found guilty of offence under Section 8 of N.D.P.S. Act punishable under Section 20 of the said Act, 1995. He is sentenced to undergo rigorous imprisonment of 10 years and also to pay a fine of Rs. 1.00 Lakh vide judgment dated 25.07.2011. The conviction judgment dated 22.07.2011 and sentence of imprisonment on 25.07.2011, are called in question before this Court.', (int) 1 => '<p> 2. The facts leading to the following of this case are as follows:', (int) 2 => '<p> On receipt of a credible information on 11.10.2010 at about 5.30 p.m., PW.1 the Excise Inspector, Shahapur together with Deputy Commissioner of Excise, Gulbarga and his staff and two panchas searched the house of accused No.2/ Mahammedsab situated at Vidya Nagar, Shahapur. The first accused was stated to be residing in the house of second accused at the time of the said raid. Accused No. 1 was very much present in the house and on search of his house, he was found to be in possession of 4 plastic bag containing in all 13 Kgs. of Ganja. One bag contained of 4 Kgs. of ganja and remaining 3 bags contained 3 Kgs. of Ganja each and they were weighed with the help of a scale. The Excise Inspector seized the above incriminating substance under a mahazar in the presence of independent panchas and the Deputy Commissioner of Excise. His two staff took out 100 Gms of ganja each from the 4 bags and pasted a chit containing their signatures and signatures of panchas on the four packets separately.', (int) 3 => '<p> 3. Thereafter the accused was arrested and brought to the police station and on the basis of his report a case was registered a case in Crime No. 1/2010 for the offences punishable under Sections 8 and 25 of N.D.P.S. Act, 1985 punishable under Section 20 of the Act. Accused No. 2 is said to be the owner of the house.', (int) 4 => '<p> 4. The Excise Inspector sent the seized sample for chemical examination to Bangalore and thereafter PW.4 Anilkumar took over further investigation of the case and obtained the records of the house in which the first accused was residing. After completion of the investigation a charge sheet was filed against both the accused.', (int) 5 => '<p> 5. Charges were leveled against the accused on 23.03.2011 they had pleaded not guilty and had claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined in all six witnesses inclusive of PW-6 the Gazetted officer. PW.2/Ibrahim and PW.3/Ramesh are stated to be the independent panchas and they have not supported the case of the prosecution in any manner. PWs. 4, 5 and 6 have supported the case of the prosecution. In all 7 Exhibits have been got marked inclusive of one search warrant. Ex.P1 said to have been prepared in the house of accused No. 2. In all 12 material objects have been got marked. The defence of the accused is one of total denial of the allegations leveled against them.', (int) 6 => '<p> 6. Heard the learned counsel appearing for the appellants and the learned HCGP for the respondent at length. Learned counsel for the appellant has argued that there is inherent inconsistency between the version of PWs.1, 4 and 6 and that several mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He has argued that there was inordinate delay in sending the samples to the FSL and the reduction in the quantity of the ganja is not explained in any manner. He has further argued that no paper containing the sample seal of the investigating officer, which was allegedly affixed on the four bags, was sent to the FSL. He has relied the following decisions of the Hon'ble Apex Court;', (int) 7 => '<p> (i) (2011) ACR 2002 in the case of Central Bureau of Narcotics Vs Bahadur Singh.', (int) 8 => '<p> (ii) (2013) 1 SCC (Crl) 933 in the case of Sukhdev Singh Vs State of Haryana.', (int) 9 => '<p> (iii) (2013) 2 SCC (Crl) 807 in the case of Kishan Chand Vs State of Haryana.', (int) 10 => '<p> 7. Learned Government Pleader has supported the judgment of conviction and sentence on the ground of substantial compliance of mandatory provisions of Section 42 and 50 of NDPS Act has been done and that there is no reason to disbelieve the version of the officer who conducted the raid and the other official witnesses. He has argued that the officer who conducted the raid had no time to obtain search warrant from the Magistrate and therefore he had to immediately conduct the search and there is no reason to disbelieve the search warrant prepared by him. He has argued that the inconsistency found in the version of the official witnesses is minor in nature and they cannot be blown out of proportion. Hence, he has requested the Court to sustain the judgment of conviction and sentence.', (int) 11 => '<p> 8. After going through the records and after having heard the learned counsel appearing for the parties the following points that would arise for my consideration;', (int) 12 => '<p> (a) Whether the trial Court has considerate the evidence in right prospective keeping in mind the mandatory provisions of Sections 42 and 57 of NDPS Act 1985?', (int) 13 => '<p> (b) Whether the judgment of conviction and sentence is sustainable in law and on facts?', (int) 14 => '<p> (c) What order?', (int) 15 => '<p> REASONS', (int) 16 => '<p> 9. The entire case of the prosecution is based upon Ex.P2, seizure mahazar stated to have been drawn by PW-1. Abubaker who was working as Inspector of Excise, Yadgir, in the presence of two independent witnesses, Ibrahim Biradar and Ramesh (PWs-2 and 3) and also PW-6, Jammusab, working as Deputy Commissioner of Excise. PW-6 was stated to be holding concurrent charge of Deputy Commissioner of Excise, Yadgir. Therefore, it is incumbent upon the prosecution to prove the mahazar to the hilt and to the satisfaction of the court.', (int) 17 => '<p> 10. The case on hand relates to the alleged seizure of 13 kgs. of ganja from the house of the 1<sup>st</sup> accused. According to the prosecution, the house in question belonged to accused no.2. While disposing of the case, the learned special judge has acquitted accused no. 2 who is the father of accused no. 1. PW-1, Abubaker who conducted the initial investigation, has not stated anything about the relationship between accused nos. 1 and 2 inter se. It is only PW-4 who took up further investigation on 29.10.2010 has deposed to that effect.', (int) 18 => '<p> 11. In his examination-in-chief, Anilkumar “ PW4 has deposed that during the course of further investigation, he came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and both of them were living together. The house in which the ganja was allegedly seized bore no. 1-1-60/19 and was situated in Shahpur town near Guttipet school of Vidyanagar locality. The electrical meter of the said house, according to the prosecution, was R.R. 2918851.', (int) 19 => '<p> 12. NDPS Act provides for harsher punishment and therefore strict compliance of all the mandatory provisions is required. Substantial compliance of the provisions would be no compliance in the eye of law. The twin purpose of the provisions of Section 42 of the Act, according to the Hon'ble apex court in the case of SUKHDEV SINGH .v. STATE OF HARYANA reported in 2013(1) SCC (Crl.) 933 are as follows:', (int) 20 => '<p> Section 42 is a mandatory provision which ought to be construed and complied with strictly-compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably prior to recovery. But there could be cases where the investigating officer, for special reasons to be explained in writing, is not able to instantaneously reduce the information into writing and send the said information to his superior officer but could do it later and preferably prior to recovery.'', (int) 21 => '<p> What is held by the Hon'ble apex court in the said case is that total non-compliance of the provisions of Section 42(1) and 42(2) is impermissible. Delayed compliance with satisfactory explanation for the delay with acceptable reasons, as enumerated in Section 42 of the Act, is required. Whether there is adequate or substantial compliance of Section 42 or not, is a question of fact to be decided in each case.', (int) 22 => '<p> 13. It is very relevant to look to the decision rendered by the Constitutional Bench of the Hon'ble apex court in the case of KARNAIL SINGH .v. STATE OF HARYANA ([2009] 8 SCC 539). The said decision has been followed in the case of SUKHDEV (supra). The purpose of strict compliance of the mandatory provisions is to prevent false implication of innocent persons. The Legislature in its wisdom, according to the Hon'ble apex court in the case of SUKHDEV, has made the provisions of Section 42 mandatory and not optional. Section 42 intends to provide protection as well as lay down the correct procedure which is mandatory and which should be followed by the investigating officer. He is obliged to furnish information to the superior officer forthwith, without any undue delay. There could be cases where the investigating officer, instantaneously, for special reasons to be reduced in writing, is not able to reduce the information into writing and send information to the superior officer, but should be sent preferably prior to recovery.', (int) 23 => '<p> Therefore, there cannot be any escape from the strict provisions of Section 42 of the Act. Therefore we will have to see whether Section 42 of the Act has been strictly complied with in the present case.', (int) 24 => '<p> 14. PW-1, Abubaker was the Inspector of Excise at Yadgir from 16.10.2009 to 4.2.2011. He has deposed that he was patrolling Shahpur town of Yadgir on 11.10.2010 and at 5.30 p.m. when he received credible information to the effect that one person named Chandpasha had unauthorizedly stored ganja leaves in his house in Vidyanagar. Therefore, himself, his staff being accompanied by Ukkadagatri, Deputy Commissioner of Excise and two independent witnesses namely, Ibrahim Biradar and Ramesh went to the spot, i.e. house of 1<sup>st</sup> accused. A search warrant was prepared in terms of Section 42 of the Act. He has deposed that the door of the house was not closed and on entering, they inquired as to who was inside. The 1<sup>st</sup> accused came out of the house and introduced himself as Chandpasha, son of Mohammed Nadaf. The raiding party was sure about the identity of the person with reference to credible information received by PW-1.', (int) 25 => '<p> 15. PW-1 has further deposed that when all of them entered the house, the 1<sup>st</sup> accused who tried to run away and he was caught hold of by his staff. There was a treasury and near it, four plastic bags were found and on opening them, ganja leaves were found and they were weighed with a scale. One among the four bags weighed 4 kgs. and the remaining 3 bags weighed 3 kgs. each. On enquiry, 1<sup>st</sup> accused stated that he had not obtained any licence or permission to store the same. Later on, 100 gms. of ganja was taken from each bag for sample and put into four separate covers and the slips containing the signatures of Panchas were affixed on the four covers containing the samples. He has deposed that on 26.10.2010 the said sample packets were sent to FSL, Bengaluru, for chemical test and the report was received on 28.10.2010. Om 29.10.2010, further investigation was handed over to Anilkumar, CW-6.', (int) 26 => '<p> 16. PW-1 has identified Ex.P1 as the search warrant prepared by him and Ex.P1(a) is said to be his signature. Ex.P2 is the Panchnama stated to have been drawn in the house of the 1<sup>st</sup> accused relating to seizure of 13 kgs. of ganja kept in four bags. Ex.P3 is the report submitted by him to the jurisdictional special judge and Ex.P4 is the FIR. Ex.P5 is the report of the chemical analyst and Ex.P6 is the sheet containing the sample seal of the office of the Deputy Commissioner of Excise, Yadgir. Ex.P7 is the certificate issued by the Chief Officer, Town Municipal Council, Shahpur, relating to the house of the 1<sup>st</sup> accused. Either in the examination-in-chief or cross-examination, PW-1 has not deposed anything about the information being given to his superior officer in terms of Section 42 of the Act.', (int) 27 => '<p> 17. Normally the officer conducting raid under the NDFS Act should obtain a search warrant from the jurisdictional judge to conduct a raid/search and the second proviso to Section 42(1) of the Act enables the officer conducting raid to enter the premises and conduct search without warrant or authorization. But sub-section (2) of Section 42 of the Act mandates that when an officer takes down information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior. If the officer not below the rank of Inspector, receives any information while in police station, he is expected to put it into writing and inform his immediate official superior without undue delay and the maximum time within which he should intimate is 72 hours.', (int) 28 => '<p> 18. PW-1, while referring to the story of the prosecution, does not state anything about reporting the matter immediately on receipt of the secret information to the superior officer. In his examination-in-chief, such statement is conspicuous by its very absence. Learned HCGP has vehemently relied upon the deposition of PW-6, Jammusab who was stated to be the in charge Deputy Commissioner of Excise, Yadgir. He has deposed that he was holding concurrent charge of Deputy Commissioner of Excise, Yadgir, which includes Yadgir, Shahpur and Surapur taluks. He has deposed that on 11.10.2010 he was proceeding from Yadgir to Gulbarga and in the evening he received a telephone call from the Excise Inspector about some person storing ganja illegally at Shahpur. He has deposed that he was asked to come near Shahpur bus stand. When he went there, the Inspector informed him about the credible information he had received. He has deposed that PW-1 went ahead and he followed him in another vehicle. He has deposed that both the vehicles went near the house in Vidyanagar and stopped in front of the house bearing the letters KGN. The Inspector of Excise prepared the arrest warrant and since the door was open, all of them entered and one person came out and on inquiry, he disclosed his name as Chandpasha, son of Mohammed Nadaf. He was intimated about the credible information received by PW-1. He has deposed that four bags were found near the treasury and on inquiry, he told them it was flowers. On opening, they found dry ganja leaves and he had not obtained any licence or permission for such storage.', (int) 29 => '<p> 19. According to PW-6, ganja was weighed there itself and they found one bag contained 4 kgs. and the remaining 3 bags contained 3 kgs. each of ganja leaves. 100 gms. was taken from each bag for sample and put in four covers and closed after affixing the slips containing the signatures of Panchas. What is argued by the learned HCGP is that the information given by PW-1 to PW-6 is substantial compliance of Section 42 of the Act since PW-6 was the immediate official superior of PW-1. Whether there is acceptable evidence placed on record to this effect, is the question. Whether the evidence of PW-1 and PW-6 really inspires the confidence of the court about the presence of PW-6 is the question.', (int) 30 => '<p> 20. PW-1 has deposed that on receipt of credible information, himself and deputy Commissioner of Excise, Mr. Ukkadagatri, staff and two independent Pachas namely, Ibrahim Biradar and Ramesh went near the house of the 1<sup>st</sup> accused. According to him, Ukkadagatri who is charge sheet witness no. 4, was the Deputy Commissioner of Excise, Yadgir, and he has put his signature. Nowhere CW-4 (PW-6) has deposed that his name is Ukkadagatri. The name of PW-6 is shown as Jammusab, a retired Deputy Commissioner of Excise. PW-1 has made reference about PW-6 on the ground that he was a Gazetted Officer and was present at the time of seizure. Nowhere in his examination-in-chief he has deposed about information being given to PW-6. Even in cross-examination, PW-1 has deposed that CW-4 was returning from Yadgir towards Shahpur. He has specifically deposed that there is no reference in Ex.P2 “ mahazar about CW-4 having participated in the seizure process. It is better to scan the seizure mahazar stated to have been drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010 in the house of the 1<sup>st</sup> accused in Vidyanagar.', (int) 31 => '<p> 21. On going through Ex.P2 meticulously, it is seen that two independent witnesses had stood near the bus stand of Shahpur and a request was made to them to accompany PW-1 to Vidyanagar in the light of credible information received. Ex.P2, mahazar is signed by PWs-1, 2, 3 and 6. Not even a feeble reference is found about the presence of PW-6 at the time of seizure and the alleged seizure though the signature of PW-6 finds place in the last page of Ex.P2. It is in this regard the evidence of PW-1 is very relevant.', (int) 32 => '<p> 22. In his cross-examination at page 6, PW-1 has specifically deposed that CW-4 was present as a Gazetted Officer and Ex.P2 was written in his presence. Ex.P1 is stated to be the report submitted to the special judge, Yadgir, relating to his inability to obtain prior search warrant in view of the urgency of raid to the house of 1<sup>st</sup> accused soon after receipt of credible information. Even PW-1 does not refer to the presence of PW-6 at that time Ex.P3 is another report submitted to the learned special judge, Yadgir, dealing with NDPS Act on 12.10.2010. What is mentioned in Ex.P3 is that the raid was conducted in the presence and on the direction of the Deputy Commissioner of Excise, Gulbarga and Joint Commissioner of Excise, Gulbarga, at 6.00 p.m. along with his staff and two independent Panchas. There is no reference about the presence or guidance of the Joint Commissioner of Excise, Gulbarga, in regard to the seizure. If according to Exs.P3-report and Ex.P4-FIR, the Joint Commissioner of Excise was present, PW-1 and PW-6 would have spoken to that effect. In the documentary evidence placed on record in the form of Exs. P3 and P4, there is no reference about the presence and guidance of the Joint Commissioner of Excise and nothing has been spoken to either by PW-1 or PW-6.', (int) 33 => '<p> 23. In Ex.P4, there is a specific reference about the guidance made by the Joint Commissioner of Excise and in charge Deputy Commissioner of Excise, Gulbarga. It is also mentioned that they took the lead and he conduced search in their leadership. It is ununderstandable as to why such mention is not found in the evidence of either PW-1 or PW-6. The learned judge of the trial court has held that the evidence of PWs-2 and 3 cannot be rejected in toto since they have admitted about going along with PW-1 to the house of the accused. It is further held that they have admitted their signatures on Ex.P2 and therefore, the search is proved. But these two witnesses have completely given a go-by about the search made in the house of the 1<sup>st</sup> accused and seizure of 4 bags containing ganja. They have rescaled in regard to the material aspect and this has not been properly considered by the trial court. Therefore their evidence will have to be virtually eschewed from consideration.', (int) 34 => '<p> 24. As already observed, the mandatory provisions of Section 42 of the Act have a great effect on the case on hand. The very presence of PW-6 at the time of the alleged seizure appears to be doubtful in the light of there being no reference in Ex.P1 except the signature of PW-6 on the last page of the document in green ink.', (int) 35 => '<p> 25. In the case of KARNAIL SINGH (supra), the Constitutional Bench of the Hon'ble apex court has held as follows:', (int) 36 => '<p> An officer on receiving information of the nature referred to in sub-section (1) of Section 42 from any person, is expected to record the same in writing in the register concerned and forthwith send a copy to his immediate official superior before proceeding to take action in terms of clauses (a) to (d) of Section 42(1). But if the information is received by the officer while his is on the move, either on patrol duty or otherwise, either on mobile or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him. In such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.'', (int) 37 => '<p> It is not the case of PW-1 that he received credible information either from PW-6 or the Joint Commissioner of Excise. Nowhere he has deposed that the information so received was subsequently communicated in writing to the immediate officer at the earliest, or within 72 hours from the time of receipt of such information.', (int) 38 => '<p> 26. What is argued before this court by the learned HCGP is that there is substantial compliance of the provisions of Section 42(1) and (2) of NDPS Act since the in charge Deputy Commissioner of Excise, Gulbarga, had concurrently held charge and was present at the time of the search. PW-6 has deposed that he received information from PW-1 while he was proceeding from Yadgir to Gulbarga and he was asked to come to Shahpur bus stand, and he met PW-1 and other witnesses there. PW-1 has not deposed to that effect. What he had deposed is that himself, Deputy Commissioner of Excise, his staff and two independent witnesses went to the spot. If really he had informed PW-6 over phone and PW-6 had come near the bus stand at 5.30 p.m. on the said day, PW-1 would have spoken to that effect. This glaring inconsistency has been virtually ignored by the trial court.', (int) 39 => '<p> 27. Another aspect is, submission of FIR to the jurisdictional special judge. The seizure mahazar was allegedly drawn between 6.10 p.m. and 7.00 p.m. on 11.10.2010, but the FIR marked as Ex.P4 was submitted to the jurisdictional special judge at Yadgir at 11.30 a.m. on the next day. There is inordinate delay in submitting the report and this has not been properly explained. This has to be viewed in the light of inconsistencies found in Ex.P2-seizure mahazar and Ex.P5- report of the chemical analyst. Ex.P2 discloses that ganja seized was dry ganja, whereas in Ex.P5, it is mentioned that the 4 packets contained leaves, stem and seeds. Ex.P5 discloses that the chemical analyst received 4 cloth bags stated to be containing ganja and they had been affixed with seal. The sample seal should have been sent on a slip of paper along with the ganja sent through PW-5, Basavaraj working as Excise Guard. It is in this regard the evidence of PW-5, Basavaraj needs to be scanned.', (int) 40 => '<p> 28. PW-5 has deposed that he took 4 packets containing sample ganja to the chemical analyst, and while giving the same, the officer put seal on the same. If the seals had been put before handing over the 4 packets to him, interference with these packets cannot be ruled out. This has to be viewed in the light of not sending sample seal affixing the same on paper through PW-5 and the said sample seal should have been verified by the chemical analyst before opening the same. This is a serious lacuna which is writ large and is disadvantageous to the prosecution.', (int) 41 => '<p> 29. Ex.P7 is stated to be a certificate issued by the Chief Officer of Town Municipal Council, Shahpur, stating that house bearing no. 1-1-60/19 belonged to the 2<sup>nd</sup> accused. The relevant register in which these information were found is not forthcoming in Ex.P7. The author of Ex.P7 is also not examined. PW-4, Anilkumar who conducted further investigation, has deposed that he obtained Ex.P7 from the Chief Officer, Town Municipal Council and came to know that the 2<sup>nd</sup> accused was the father of the 1<sup>st</sup> accused and that they were living together. If both of them were living together and the contraband was found in the house of the 2<sup>nd</sup> accused, it is not made known as to why the prosecution has not filed any appeal against acquittal of the 2<sup>nd</sup> accused.', (int) 42 => '<p> 30. PW-4 in his cross-examination, has deposed that house bearing no. 1-1-60/19 has been divided into 16 hissas (parts) and he did not ask for the copy of the property register. He has admitted that in the said house, other persons may be living. He did not make any inquiry as to the children that the 2<sup>nd</sup> accused had and their place of residence. In the light of serious contradiction, much credence cannot be attached to Ex.P7. In the circumstances, examination of the author of Ex.P7 was absolutely required.', (int) 43 => '<p> 31. During the course of cross-examination, PW-1 was confronted with two packets containing ganja. On being asked about the probable weight of the same, he has deposed that it may be between 1.00 and 1.5 kgs. The reason given by him in regard to reduction in the quantity found in Ex.P2 is that at the time of seizure, ganja was still wet and reduction is due to passage of time and ganja having dried. Apart from this, PW-6, Jammusab has deposed that he found dry ganja after opening the bags in the house of the 1<sup>st</sup> accused.', (int) 44 => '<p> 32. The presence of PW-6 also appears to be doubtful in the light of certain useful admissions elicited from his mouth. PW-6 has deposed that the information received by him was intimated to his higher officer through phone. No evidence is placed on record to that effect. If PW-1 had conducted raid on receipt of information, there was no necessity for PW-6 to inform the higher officers. It is further deposed that he cannot say the approximate time of receipt of information through his mobile.', (int) 45 => '<p> He has further deposed that he was at a distance of 1-2 kms. from Shahpur when he received the information. He did not give any information to the investigating officer about the details. Therefore a specific suggestion was put to him that he his deposing falsely about receipt of information to PW-1 while proceeding from Yadgir to Gulbarga.', (int) 46 => '<p> 33. The learned judge has examined both the accused under Section 313, Cr.P.C. It is not the case of the prosecution that the 2<sup>nd</sup> accused was present when the alleged search was conducted in the house. The questions put to accused no. 1 are repeated to accused no. 2 and they have no relevancy whatsoever. The 2<sup>nd</sup> accused has been examined as though he was present at the time of seizure. The case of the prosecution suffers from serious illegality and factual infirmities and they have been ignored by the trial court.', (int) 47 => '<p> 34. The learned judge has also ignored the inordinate delay in sending the sample ganja to the chemical analyst. What is held is that there was no chance of changing the characteristics of the sample and no prejudice is caused to the accused due to the delay in sending the same. This court is unable to accept the same. In the light of the weight of ganja found in two packets confronted to PW-1, interference with these packets cannot be ruled out. Suffice to state that in the light of serious legal infirmities and factual inconsistencies, the prosecution has not been able to prove the guilt of the accused beyond all reasonable doubt. Accordingly point no. 1 is answered in the negative. In this view of the matter, the appeal will have to be allowed and the judgment of conviction and sentence will have to be set aside.', (int) 48 => '<p> 35. In the result, the following order is passed:', (int) 49 => '<p>ORDER', (int) 50 => '<p> The appeal is allowed. The judgment of conviction and sentence passed in Spl. Case No. 1/11 by the District and Sessions Judge, Yadgir, is set aside and the accused is acquitted of all the charges leveled against him. He shall be released forthwith if he is not required in any other case.', (int) 51 => '' ) $paragraphAfter = (int) 1 $cnt = (int) 52 $i = (int) 51include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109