Mustaq Ahamed Alias Maamu Vs. State Of Karnataka - Court Judgment

Excerpt:
r1in the high court of karnataka at bengaluru dated this the15h day of december, 2021 before the hon’ble mr.justice k.somashekar criminal appeal no.624 of2011between:1. mustaq ahamed alias maamu age:55. years s/o late basheer ahmed d.no.206, beedi colony mysore.2. siraj basha alias siraj alias gunda aged about 36 years s/o hameer pasha d.no.2669, 1st and 2nd south cross m.k.d.k. road, mandimohalla mysore. ...appellants (by sri. p. nataraju – advocate for m/s p. nataraju associates) and: state of karnataka by udayagiri police station rep. by state public prosecutor high court building bangalore. ...respondent (by sri. rahul rai .k – hcgp) 2 this criminal appeal filed under sec.374(2) of criminal procedure code, by the advocate for the appellant praying to set aside the judgment and.....

Judgment:

R1IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE15H DAY OF DECEMBER, 2021 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL APPEAL No.624 OF2011BETWEEN:

1. Mustaq Ahamed alias Maamu Age:

55. years S/o Late Basheer Ahmed D.No.206, Beedi Colony Mysore.

2. Siraj Basha alias Siraj alias Gunda Aged about 36 years S/o Hameer Pasha D.No.2669, 1st and 2nd South Cross M.K.D.K. Road, Mandimohalla Mysore. ...Appellants (By Sri. P. Nataraju – Advocate for M/s P. Nataraju Associates) AND: State of Karnataka By Udayagiri Police Station Rep. by State Public Prosecutor High Court Building Bangalore. ...Respondent (By Sri. Rahul Rai .K – HCGP) 2 This Criminal Appeal filed under Sec.374(2) of Criminal Procedure Code, by the Advocate for the appellant praying to set aside the judgment and order of conviction passed by the Prl. District and Sessions Judge at Mysore in Special Case No.25/2010 dated 01.06.2011 and acquit the appellants by allowing this appeal. This criminal appeal coming on for dictating judgment this day, the court delivered the following:

JUDGMENT

This appeal is directed against the judgment of conviction and order of sentence rendered by the Court of the Principal District and Sessions Judge, Mysore, (hereinafter referred to as ‘trial Court’) in Spl.C. No.25/2010 dated 01.06.2011, whereby held conviction for the offence punishable under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’) 1985.

2. In this appeal appellant is seeking for consideration of the grounds urged in the appeal memo 3 and consequently to set aside the judgment of conviction and order of sentence rendered by the trial Court and seeking acquittal of accused Nos.1 and 2 for the offence punishable under Section 20(b) of the NDPS Act, 1985, amongst the grounds urged.

3. Heard the learned counsel Sri P. Nataraju for appellants and so also the learned High Court Government Pleader for the respondent-State, who are present before the Court physically.

4. Perused the judgment of conviction and order of sentence rendered by the trial Court in Spl.C. No.25/2010 dated 01.06.2011 so also the evidence of PWs.1 to 8 and the documents at Exs.P1 to P7 and also MOs 1 to 8.

5. Factual matrix of the appeal is as under: It is transcribed in the case of the prosecution that on 12.08.2009 at around 12:30 noon the Police 4 Inspector of Udaygiri Police Station in Mysuru had received credible information over the phone that two persons within the limits of Udaygiri Police Station in Mahadevpura Main Road near the Mosque situated very next to the hilt of the ground were involved in the selling Ganja. On receipt of credible information, the Police Inspector of Udaygiri Police Station after giving information to the ACP of Devaraj Police Station has rushed to the aforesaid spot along with staff members in order to conduct the raid. There they found two persons involved in the activities of selling Ganja and collecting money from the persons who purchase Ganja found in their possession. The Police Inspector of Udaygiri Police Station and his team have surrounded those two persons who being arraigned as accused and out of that two persons one person who was holding the bag was apprehended and another person who was collecting money from the persons in regard to selling of Ganja has escaped from the scene of crime. 5 Subsequently, the Police Inspector who lead the team members to the scene of crime in the presence of the Panch witnesses has conducted Mahazar and also seized the Ganja from the possessions of accused No.1 namely Mustaq Ahmed @ Maamu and brought him to the Police Station. Then he registered a suo moto case against the accused persons by filing a complaint report. Accordingly, criminal law was set into motion by recording the FIR as per Ex.P4 for the offence punishable under Section 20(b) of NDPS Act, 1985. After recording FIR by the Police of the jurisdiction they proceeded in further for investigation and to lead charge-sheet against the accused persons.

6. It is the further case of the prosecution that after apprehending of accused No.1 the Police Inspector conducted search of the bag found in the possession of accused No.1 and found 500 grams of Ganja and also found 58 small packets containing Ganja and 5 paper 6 packets in all it contained 720 grams of Ganja and also recovered an amount of Rs.1,260/- from the possession of accused No.1. On enquiry to him in respect of another person who escaped from the scene of crime, he revealed that accused No.2 told him to keep money with him. After registering the case he conducted further investigation and entrusted the matter to PW7 namely Sadashiva working as Police-Sub-Inspector of Udaygiri Police Station, Mysore. After entrusting the further investigation by the Police Inspector PW2 – Mathews Thomas who registered the crime against accused on his complaint report to PW7, thereafter he being the Police-Sub-Inspector conducted further investigation thoroughly and lead charge sheet against the accused persons.

7. On receipt of summons issued by the trial Court, accused Nos.1 and 2 put their appearance through their counsel and on hearing prosecution and 7 the defence counsel, the trial Court framed the Charge against accused Nos.1 and 2 for the offence punishable under Section 20(b)(i) of the NDPS Act, 1985. Accused Nos.1 and 2 have not plead and claimed to be tried. Accordingly, pleas of the accused were recorded by the trial Court.

8. Subsequent to recording the pleas of the accused the prosecution has lead evidence by subjecting PWs.1 to 8 so also got marked Exs.P1 to P7 inclusive of MOs.1 to 8. After closure of the evidence on the part of prosecution, the accused were subjected to examination under Section 313 of Cr.P.C., regarding the statements made by the prosecution witnesses against them, whereby accused declined the truth of the evidence adduced. Accordingly it was recorded. Subsequently accused were called entering into defence as contemplated under Section 233 of Cr.P.C., but they did not adduce any defence evidence. 8

9. Thereafter, the trial Court heard the arguments adduced by the learned Public Prosecutor for the complainant and the defence counsel and being convinced with the evidence of PWs.1 to 8, so also the documents at Exs.P1 to P7 inclusive of MOs.1 to 8, Court arrived for a conclusion that prosecution has found guilty of the accused and rendered the judgment for the offence punishable under Section 20(b) of NDPS Act, 1985. The said judgment is challenged in this appeal urging various grounds.

10. Learned counsel for the appellant Sri P. Nataraju, has taken me through the evidence of PW2 Mathews Thomas who is the Police Inspector, wherein he has deposed that on 12.08.2009 at around 12:30 noon he got some credible information that within the limits of Udayagiri Police Station, Mysore that is in Mahadevapura Main Road, near the Mosque situated very next to the hilt of the ground two persons are 9 involved in the activities of selling Ganja; therefore, he forwarded written information to the jurisdictional ACP, Mysore and secured oral order from him; thereafter he secured Panch witnesses to the Udaygiri Police Station, apprised them about the credible information which he got and lead the team to the spot, there in a little distance they found two persons involved in the activities to sell the Ganja and also noticed some packets in the bag which was in their possession and he identified the accused persons who were present before the Court as they are the same persons who were involved in the activities of selling Ganja on the date of incident in the scene of crime. He has further deposed that accused No.1 was apprehended at the spot and accused No.2 was escaped from the spot and they found a rexine bag with accused No.1; on enquiry accused No.1 disclosed about possession of the Ganja in the said bag and when asked about License or Permit for possession of the Ganja, he replied that they are not 10 having any License. Thereafter, they made personal search of accused No.1 and also made search of the regzin bag found in his possession and found 500 grams of Ganja and plastic cover and 58 small plastic packets and also 5 paper packets in all it contained 720 grams of Ganja in his bag. Out of 500 grams of Ganja found in the plastic cover they took some Ganja separately in 4 pockets of 10 grams each as sample. This process has been done by him in the presence of the team members inclusive of Panch witnesses who have been secured and he drew a Mahazar as per Ex.P2 and also seized an amount of Rs.1,260/- found in his possession. Subsequent to registration of crime based upon his complaint report the criminal law was set into motion by recording the FIR as per Ex.P4 so also he entrusted the further investigation of the case to PW7 – R. Shankar, who is Police-Sub-Inspector and PW7 proceeded in further and after completion of 11 investigation, he laid charge sheet against the accused persons.

11. As per the evidence of PW2 - Police Inspector of Udaygiri Police Station, he got some information about the persons who were arraigned as accused in the charge sheet case that they involved in the activities of selling the Ganja and after conducting personal search of accused No.1 they conducted seizure Mahazar in accordance with the provisions of Section 50 of NDPS Act, 1985. But the trial Court had given more credibility to the evidence of PW2 and so also Mahazar at Ex.P2 inclusive of evidence of PW.7 who being the Investigation Officer laid charge sheet against the accused. For the same, whether there are proper evidence on record or the prosecution has improved its case during the course of trial and whether raid conducted by Police Inspector who is examined as PW2 along with his team and also the evidence of PW7 - 12 Investigation Officer and whether thereby they have followed the mandatory provisions of Section 50 of the NDPS Act, 1985 are all the grounds require intervention in this appeal for re-appreciation of the evidence and if it is not done, the appellant being the gravamen of the accusation who has suffered, there shall be some miscarriage of justice as contended by the appellant counsel.

12. The second limb of the argument advanced by the learned counsel is by referring to the Seizure mahazar at Ex.P2 and also in respect of fulcrum of mahazar inclusive of seizure of ganja. Insofar as 720 grams but the prosecution did not prove the fact relating to the mahazar at Ex.P2. The trial Court has given more credentiality in respect of fulcrum of mahazar at Ex.P2 and erroneously convicted the appellants who are arraigned as accused. 13

13. The judgment of conviction has been challenged under this appeal and whereby the trial Court did not consider the mandatory provision of Section 50 of NDPS Act, 1985 relating to the search of the accused and also conducting seizure mahazar at Ex.P2 even though it bears the signature of PW.2 and also signatures of PW.4 to 7. But when the mandatory provision of Section 50 of NDPS Act, 1985 has not been followed by investigating agency whereby the raiding team got credible information that accused were indulging in the activities of selling ganja which was found in the MO.2-regzine bag in possession of accused No.1 and MO.7 – 10 grams of ganja in 3 packets and also currency notes of Rs.1,260/- which got marked at MO.8, the prosecution should establish the case for following the mandatory requirement of Section 50 of NDPS Act, 1985.

14. The entire evidence which finds place on record on part of the prosecution and even if taken as a 14 whole on face value, the prosecution has miserably failed to prove the guilt of the accused and facilitating worthwhile evidence and also has failed to comply with the mandatory provision of section 50 of NDPS Act, 1985. Therefore, under this appeal it requires for intervention as where the trial Court was misdirected and also misinterpreted the evidence of PW.2 and 7 inclusive of the evidence of PW.4 to 6. But entire case of the prosecution is revolving around the fulcrum of mahazar of Ex.P2 for having seized ganja found with accused No.1 which seizure mahazar was drawn by PW.2 by following mandatory provision of Section 50 of NDPS Act, 1985 as contended.

15. In support of this contentions, learned counsel has placed reliance on a judgment of the Hon’ble Supreme Court in the case of Arif Khan @ Agha Khan Vs. State of Uttarakhand ((2018) 18 SCC380. Whereas in this reliance, Hon’ble Supreme Court of 15 India has extensively addressed the scope and object of Section 50 of NDPS Act and also principles in accordance with the aforesaid mandatory provision. It has been extensively addressed in Para Nos.18 to 20, which reads as follows: “18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC172and Vijaysinh Chandubha Jadeja (supra).

19. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.

20. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements 16 of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma vs. State of Rajasthan, 2013 (2) SCC67and Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 (6) SCC392.

16. In the aforesaid reliance, Sections 50 and 20 of NDPS Act, 1985 relating to search and seizure and recovery of contraband not made in the presence of any 17 Magistrate or Gazetted Officer and non-compliance with the mandatory procedure under Section 50 of NDPS Act,1985 has been held as fatal to the prosecution case. Hence, it was held that the conviction as held by the High Court is set aside and appellant is acquitted. This reliance is squarely applicable to the present case on hand, in given facts and circumstances relating to drawing of seizure mahazar as per Ex.P2 in the presence of PWs.4 to 7 whereby subscribed their signatures inclusive of PW.2 being Police Inspector. But PW.2 did not follow the mandatory provision of Section 50 of NDPS Act relating to drawing of mahazar in the presence of responsible Gazetted Officer. But on these premises, learned counsel for the appellants contend that the trial Court has erroneously given more credentiality to the evidence of PW.2 and so also evidence of PW.7 inclusive of evidence of PWs.4, 5 and 6 who subscribed their signatures at Ex.P2 and also given more credentiality to the evidence of PW.1 wherein 18 subjected to chemical examination at MO.1 – sample ganja and MO.7 – 10 grams (3) packets and issued report at Ex.P1 by authority even for subjecting chemical examination. On all these contentions learned counsel for the appellants is seeking to consider the grounds as urged under this appeal and consequently set aside the judgment of conviction and order of sentence rendered by the trial Court and further seeking for acquittal of accused for the offence punishable under Section 20 (b) of NDPS Act, 1985.

17. Per contra, learned HCGP for the State has taken me through the evidence of PW.2 – Police Inspector of Udayagiri Police Station and PW.7 being Police Sub-Inspector who laid the charge sheet against the accused. Based upon the complaint report, criminal law was set into motion by recording an FIR as Ex.P3 which bears signature of PW.2 who conducted seizure mahazar at Ex.P2 in the presence of PWs.4, 5 and 6 19 who are the team members and lead them to the scene of crime situated in the limits of Shantinagar of hilt of the ground in Mysuru city. But on receiving credible information by PW.2 – Mathews Thomas who is a Police Inspector, he has in turn informed the Assistant Commissioner of Police in the limits of Udayagiri Police Station that some persons were involved in selling ganja at the scene of crime situated in the limits of Shanthinagar, hilt of the ground. Further PW.2 had formed a team and led the team to the scene of crime and found two persons were involved in activities of selling ganja and thereafter Police Inspector swung into operation and apprehended by accused No.1 - one of the team members, but other person who was with him in the scene of crime, had escaped. But on enquiry of the accused, he disclosed his name as Siraj Pasha @ Siraj @ Gundal who was also involved with accused No.1 for selling ganja found in ragzine bag and also black colour plastic cover containing 58 packets of ganja at MO.5 20 and MO.7 is 10 grams (3) packets of ganja and in all total 720 grams of ganja was in possession of accused No.1 – Mustaq Ahamed @ Maamu. PW.2 – Mathews Thomas drew mahazar at Ex.P2 in the presence of PWs.4, 5 and 6 and subscribed their signatures inclusive of signature of PW.7 who is the investigating officer who laid the charge sheet by taking up the case for further investigation and investigation has been done by him and even conducted panchanama at Ex.P6 which bears signatures of PW.3 – Nagesha, PW.7 – R. Srikanth and PW.6 – Syed Mujamil and also signature of PW.8 – Sadashiva. These are all the evidence which have been let in by the prosecution to prove the guilt of the accused. Therefore, the trial Court has appreciated the evidence and came to the conclusion that prosecution has proved the guilt of the accused with beyond all reasonable doubt. 21

18. MO.2 – Regzine bag and MO.3 – White plastic cover including paper packets which are marked as MOs.2 to 5 which containing ganja in all 720 grams and also found amount of Rs.1,260/- which was seized from accused No.1 and when enquired with him, he revealed the name of accused No.2 and he asked him to keep money with him. Therefore, PW.2 who conducted seizure mahazar at Ex.P2 and after conducting seizure mahazar he had entrusted further investigation to PW.7. PW.7 conducted investigation and after completion of investigation laid the charge sheet against the accused. But accused Nos.1 and 2 have been identified and also that PWs.4, 5 and 6 have subscribed their signatures. It is the evidence of those witnesses inclusive of the evidence of PW.1 who issued FSL report at Ex.P1 relating to subjecting to examination of MO.1 – sample ganja. It was detected and found that it is ganja and accordingly issued FSL report that it was ganja. PW.1 who has subscribed her signature on the part of 22 prosecution and even subjected to examination and it is elicited that as where the accused was apprehended it is public place it is the scene of crime. But he did not give notice to panch witnesses even though it is noticed that he did not take signature of persons who were present in the scene of crime. PW.4 – Purushotham being Police constable and PW.5 – head constable have been subjected to examination on part of the prosecution relating to personal search of accused No.1 and this personal search was made by Police Inspector and that PW.4 – Purushotham who had given writing contents of the seizure mahazar. But he has denied the suggestion made he did not accompany the Police Inspector to the scene of crime and also he did not got writing contents of seizure mahazar. Similarly PW.5 – Puttegowda being head constable he is also one of the team members who accompanied the Police Inspector – PW.2 but he has stated in his evidence that PW.4 – Purushotham and he has himself had got written the contents of the Ex.P.2 23 which is the seizure mahazar and they had subscribed their signatures and they identified MOs.2 to 8. But he had denied the suggestion relating to drawing the seizure mahazar at Ex.P2 by Police Inspector – PW.2 who led the team to scene of crime. But PW.5 has stated in his evidence that scale to weigh ganja was secured through one Nandeesha but he has stated that he could not tell from which shop it was bought. Merely because of this evidence as stated by PW.5, it cannot be a ground for intervention in the judgment of conviction rendered by the trial Court. PW.7 who is the investigating officer who took up the case for further investigation from PW.2, has conducted the entire investigation thoroughly by conducting panchanama at Ex.P6 which bears signatures of PW.3 – Nagesha and also PW.6 – Syed Mujamil, but did not support the case. But PW.7 also one of the member of raiding team and subscribed their signature, PW.2 – Police inspector who is superior authority, lead the team to the scene of 24 crime of hilt of the ground in Shanthinagar, Mysuru city and there was no impediment in bringing the persons who were in the shop to admit that MOs.4 and 5 ganja which was weighed in electronic scale has been secured through one Nandeesha and also it is admitted by PW.7 in his evidence that he did not enquire the owner of the electronic scale during the course of investigation. Further, he had denied the suggestion made by the defence counsel that accused No.1 was not apprehended at the spot and accused No.2 had took to heel from the scene of crime. But the other independent witnesses such as PW.3 and 8 have been secured by the Police Inspector who was examined as PW.2 and also PW.7 being the investigating officer who laid the charge sheet against the accused. But on 13.09.2009, PW.3 has been secured and in his presence they have appraised him relating to removal of 50 grams of ganja from the packet and identified the MO.1 – sample ganja and also bears his signature at Ex.P.6. PWs.3 and 8 25 though have been examined on the part of examination, but nothing worthwhile has been elicited in their evidence to disbelieve the evidence of the prosecution. But PW.8 who is the eyewitness has stated in his evidence that about one year ago when he was proceeding near Udayagiri Police Station he was called near the police jeep and he was made to accompany the Police Inspector PW.2 near hilt of the ground situated in the limits of Shanthinagar. However, team members have apprehended accused No.1 but the other accused had escaped from the scene of crime and the team members found black colour plastic cover containing 58 packets of ganja and 5 paper packets containing 10 grams of ganja and they have secured an electronic scale and weighed it and found a total quantity of 720 grams of ganja and whereby he has certified MOs.1 to 7 and also seized cash of Rs.1,260/- from the possession of accused No.1. These are all the evidence let in by the prosecution to prove the guilt of the accused, that 26 PWs.2, 4, 5 and 7 have been subjected to examination and even they are official witnesses PW.2 who conducted raid along with the team members and he drew seizure mahazar at Ex.P2 and also having seized sample ganja – MO.1 and inclusive of MOs.4 and 5 which are the packets containing ganja and also weighing scale of ganja and also found in the possession of accused No.1 and also secured the electronic scale which is marked as MO.6. But MOs.4, 5 and 7 are plastic covers and packets containing ganja inclusive of MO.1 which were found in the possession of accused No.1 where the prosecution has been subjected to examination PWs.2, 4 5, and 7 being official witnesses, which evidence cannot be discarded. No doubt that PW.2 who is the Police Inspector who got information and based upon the information he had formed a team consisting of team members and led the team to the scene of crime situated at Shanthinagar in Mysuru on the hilt ground area and found two persons involved in 27 the activity of selling ganja which was found in rezgine bag in the possession of accused No.1. Therefore, PW.2 – Police Inspector who conducted raid drew seizure mahazar at Ex.P2 and he had categorically stated in his evidence that soon after he got information he informed to the ACP of Udayagiri Police Station in Mysuru and secure his oral permission and formed a raiding team and led the team to scene of crime on hilt ground area and succeeded in the raid made by him and also seized ganja found in possession of accused No.1 and inclusive of MO.8 – Nine currency notes of 100 denomination, five currency notes of 50 denomination, eleven currency notes of 10 denomination. In total Rs.1,260/-. These are all the evidence let in by the prosecution to prove the guilt of the accused. There is no ill-will between the accused and police officials and there is no enmity between them or any incriminating evidence to set up a theory as regards offences lugged against the accused. But nothing is elicited from the aforesaid witnesses even 28 though they have been subjected to cross examination on the part of defence side for having considered these material evidence both oral and documentary evidence even official witnesses of PWs.4, 5, 7 coupled with evidence of PW.8 inclusive of PW.1 who issued FSL report at Ex.P1 by chemical examination of ganja which was detected in the material object seized and also forwarded to FSL. But it is at the instance of the accused persons only for having seized the ganja under Ex.P2 of seizure mahazar. These are all the evidence which have been appreciated by the trial Court to come to the conclusion of convicting the accused. Hence, under this appeal, it does not arise to call for any intervention since there are no warranting circumstances arise. On all these premises learned HCGP in the appeal seeks for dismissal of this appeal as being devoid of merits by confirming the judgment of conviction and order of sentence rendered by the trial Court. 29

19. In the context of the contentions made by the learned counsel for the appellants and also vehement contentions advanced by the learned HCGP for the State, it is relevant to refer to Section 50 of NDPS Act, 1985 which relates the conditions under which search of persons shall be conducted : (1) When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

20. The contraband seized as a result of search and seizure made in contravention of Section 50 of NDPS Act, the said fact has to be established by the prosecution beyond all reasonable doubt. The mandatory provision of Section 50 has been extensively 30 addressed by in the judgment of Ali Mustafa Abdul Rahman Moosa Vs. State of Kerala AIR1995SC244 Insofar as Section 20 of NDPS Act, 1985 relating to punishment for contravention in relation to cannabis plant and cannabis – individual rights of accused are undoubtedly important but equally important was societal interest for bringing offender to book and for system to send right message to all in society be it law- abiding citizen or potential offender. Criminal justice delivery system could not be allowed to veer exclusively to benefit of offender making it uni-directional exercise, it was held in the case of Varinder Kumar Vs. State of Himachal Pradesh LNIND2019SC128 21. Whereas, in the instant case the trial Court had held conviction for the offence punishable under Section 20(b) of NDPS Act, 1985. But FIR at Ex.P3 which bears signature of PW.2 indicates as offence under Section 20(b) of the NDPS Act, 1985 but Section 31 20 of NDPS Act, 1985 deals with punishment for contravention in relating to cannabis plant and cannabis – Whoever, in contravention of any provisions of this Act or any rule or order made or condition of license granted there under – (a) Cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, import inter-State, exports inter- State or uses cannabis, shall be punishable – (i) where such contravention relates to clause (a) with rigorous imprisonment for a terms which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees and (ii) where such contravention relates to sub-clause (b) – (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year or with fine, which may extend to ten thousand rupees, or with both; 32 (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

22. But section 50 of NDPS Act, it is mandatory provision relating to search of persons shall be conducted by following mandatory provisions. (1) When any officer duly authorized under Section 42 is about to search any person under the provisions of Sections 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any 33 of the departments mentioned in Section 42 or to the nearest Magistrate. Section 42 of NDPS Act, 1985 deals with Power of entry, search, seizure and arrest without warrant or authorization. Section 43 of NDPS Act, 1985 deals with power of seizure and arrest in public place – Any officer of any of the departments mentioned in Section 42 may – (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this act has been committed. But Section 50 of NDPS Act, it is mandatory provision for conditions under which search of persons shall be conducted. But contraband seized as a result of search and seizure made in contravention of Section 50 cannot be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in 34 a illegal manner. “Unlawful possession” of the contraband is the sine-quo-non for conviction under the Act and the fact has to be established by the prosecution beyond a reasonable doubt.

23. Whereas, in the instant case insofar as in given facts and circumstances even for conducting seizure mahazar at Ex.P2 by PW.2 who is Police Inspector of Udayagiri Police Station, Mysuru. PW.2 got some credible information about person being arraigned as accused having possession of ganja and also having involvement of the activities of selling ganja found in regzine bag which were found in possession of accused No.1. Therefore PW.2 who is responsible Police Inspector having been appraised to the concerned ACP in the limits of Udayagiri Police Station, Mysore and obtaining oral permission had proceeded for the purpose of raid. Therefore, he formed a team consisting of team members who are official witnesses and 35 accordingly PWs.2, 4, 5 and 7 have conducted raid as according to the instruction given to PW.2 being responsible Police Inspector. But PW.8 even though he is panch witness has been secured but Section 50 and 20 of NDPS Act relating to the search and seizure even recovery of the contraband articles from the possession of the accused even not made in the presence of Magistrate / Gazetted Officer and hence, non- compliance with the mandatory procedure under Section 50 of NDPS Act, 1985 is certainly fatal to the prosecution case. Consequently case of the prosecution ought to be ended in acquittal. As such counsel for the appellant has placed reliance in respect of his contention on a judgment rendered by the Hon’ble Supreme Court of India in (2018) 18 SCC380Arif Khan @ Agha Khan Vs. State of Uttarakhand which is stated supra. However, in the instant case though prosecution has let in evidence and subjected to examination of PWs.2, 4 and 5 inclusive of PW.7. But 36 PW.2 who is police inspector had received the credible information and he formed a team consisting his staff members and PW.2 led the members to the scene of crime situated in the limits of Shanthinagar of hilt ground area and found two persons who are arraigned as accused were about to sell ganja. Accused No.1 namely Mustaq Ahmed @ Maamu was apprehended by the team members in the scene of crime. But accused No.2 – Siraj Pasha @ Siraj @ Gundal had escaped from the spot but PW.2 being responsible police inspector who drew seizure mahazar as per Ex.P2 and also seized MO.1 – sample ganja and MO.4 – Black colour plastic cover containing 58 packets of ganja, MO.5 – 5 paper packets containing 10 grams ganja and MO.7 – 10 grams (3) packets of ganja inclusive of MO.8 – currency notes of Rs.1,260/- from the possession of accused No.1. Subsequent to drawing the seizure mahazar at Ex.P2, that PW.2 had entrusted the case for further investigation to PW.7 being investigating officer and who 37 conducted investigation thoroughly and laid charge sheet against the accused.

24. PW.1 is chemical examiner and subjected to examination and issued FSL report at Ex.P1 and she did not give any specific opinion and even PW.2 categorically admits in his evidence that he took oral permission from ACP in order to lead the team to the scene of crime as he got some credible information about two persons who are arraigned as accused being involved in selling of ganja even though it was seized by the team members. But PW.2 in his cross-examination he has categorically stated that for first time he had seen the accused persons. Even this suggestion made has been denied but prosecution has given more credence upon the evidence of PW.1 in respect of Ex.P1 – FSL report relating to the chemical examination of the contraband articles which were seized under Ex.P2 – seizure mahazar. PW.1 in terms of 3 tests that is 38 microscopic test, chemical test and physical test and examiner opined that presence of ganja is confirmed by the test methods adopted by her. Further prosecution has given more credentiality on evidence of PW.1 who is chemical examiner and she has reported in Ex.P1 and whereby she had conducted three tests relating to ganja which were found in possession of accused not in regzine bag. PW.1 who is responsible chemical examiner has stated in her evidence that the contents of the report were written by one of her staff member. But prosecution given more credence upon evidence of PWs.2, 4, 5 and 7 who are raiding parties being cited as witnesses even PW.3 have subjected to examination on the part of prosecution relating to the mahazar at Ex.P6 drawn by PW.7 who is the investigating officer and laid the charge sheet against the accused but 50 grams of ganja was seized by drawing mahazar at Ex.P6 in the presence of PW.3 even it finds place in the evidence of PW.3 namely – Nagesha. But PW.6 - Syed Mujamil who 39 is also one of the panch witnesses secured but he did not completely support the case of the prosecution. Even fulcrum of mahazar at Ex.P6 of the panchanama which has been drawn by PW.7 who being investigating officer, which is contrary to each other. But PW.2 – Mathews Thomas who is police inspector and whereby got some credible information and thereafter formed a team consisting of staff members inclusive of PW.4 - police constable and PW.5 – head constable and they are raiding members and whereby accompanied with the Police Inspector – PW.2 according to their evidence they found two persons who were involved in selling ganja and one person who was holding the bag was apprehended and the person who was collecting the money had escaped from the clutches of raiding team members. But this information has given by accused No.1 and amount of Rs.1,260/- was recovered from the possession of accused No.1. Even MO.2 and 7 were taken along with PWs.2, 4, 5 and 7 when apprehending 40 the accused No.1 at the scene of crime. But PW.2 who is responsible Police Inspector shall follow the mandatory provision of Section 50 of NDPS Act, relating to search and seizure and also recovery of the contraband articles from the possession of the accused, if not, it is fatal to the prosecution of case.

25. But in the instant case in all PWs.1 to 8 have been subjected to examination but the evidence of PW.6 and 8 runs contrary to the evidence of PWs.2, 4, 5 and 7 who are official witnesses. PW.2 who is police inspector got some credible information and thereafter criminal law was set into motion by recording FIR as per Ex.P3 but he formed a team consisting of official witnesses and lead to scene of crime in Mahadevpura main road, near the Mosque which is situated next to the hilt of the ground and conducted raid by PW.2 and even drew mahazar at Ex.P2 but he is required to follow the mandatory provision of Section 50 of NDPS Act. If 41 the mandatory provision of the Act is not followed, it is fatal to the prosecution case and consequently accused are deserving for acquittal.

26. Whereas in the instant case PWs.1 to 8 have been subjected to examination and PW.2 who is police inspector being official witness and PW.4 police constable and PW.5 head constable and PW.7 – Sadashiva PSI who is investigating officer and after thorough investigation has been done laid the charge sheet against the accused. Ex.P3 – FIR recorded by PW.2 and whereby subscribed their signatures at Ex.P3(a) who initially recorded the FIR and wherein the substance of the FIR reveals as offence under Section 20(b) of NI Act, 1985. The trial Court has held conviction against the accused under Section 20(b) (A) of the NDPS Act, 1985 even in that provision it indicates when a smaller quantity of contraband article alleged to be found in the possession of accused, the punishment 42 insofar as 20(b) (A) it is indicated that there shall be some imprisonment term which has specifically stated but in the instant case, conviction has been held by the trial Court for the offence punishable under Section 20(b) of NDPS Act, 1985. Punishment as regards the said section reads thus: (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year or with fine, which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be 43 less than one lakh rupees but which may extend to two lakh rupees. This is the object of the aforesaid A, B and C relating to the punishments for contravention in relation to cannabis plant and cannabis, which reveals in Section 20 of NDPS act, 1985.

27. Though prosecution has examined PWs.1 to 8 and more so PW.2 being police inspector, PW.7 – PSI who is the investigating officer and who laid the charge sheet against the accused after completion of investigation. But PWs.4 and 5 are police official witnesses and PW.6 / Syed Mujamil, he did not withstand the mahazar at Ex.P6. PWs.4, 5 and 7 who are raiding members who accompanied PW.2 – Mathew Thomas who got some credible information and criminal law was set into motion and the said witnesses have been subjected to examination on the part of prosecution and though they have deposed in their 44 evidence but the search and recovery which was made should be in the presence of any Magistrate or Gazetted Officer. It is the mandatory provision of Section 50 of NDPS Act, 1985 but non-compliance of the said mandatory provision prescribed under Section 50 of NDPS Act, is fatal to the prosecution case.

28. In the instant case, it is found that the prosecution has failed to prove the said mandatory compliance as required in law, i.e., the mandatory provision of Section 50 of NDPS Act, 1985. Therefore, appellants who are accused are entitled to claim benefit to seek acquittal. In terms of aforesaid reasons and findings and so also in view of the warranting circumstances re-appreciation of the evidence and also exhibited documents on part of the prosecution as where the trial Court did not appreciate the evidence in proper perspective manner. Keeping in view Section 50 of mandatory provision of NDPS Act if not re- 45 appreciation of the evidence, certainly the appellants who are accused before the trial court being gravamen of the accusation made by the prosecution being the sufferers and certainly there shall be a miscarriage of justice. Therefore, in view of the aforesaid reasons and findings it is opined that accused who are appellants before this Court ought to be acquitted by setting aside the judgment of conviction and order of sentence rendered by the trial Court. Accordingly, I have to proceed the following:

ORDER

Appeal preferred by the appellants / accused under Section 374(2) of Cr.P.C is hereby allowed and consequently judgment of conviction and order of sentence rendered by the trial Court in Spl.C.No.25/2010 dated 01.06.2011 is hereby set aside. Consequent upon setting aside the judgment of conviction and order of sentence rendered by the trial Court, accused are acquitted for the offence punishable 46 under Section 20(b) of NDPS Act, 1985 for which they were held charge. If accused had executed any bail bond, the same shall stand cancelled. However, keeping in view the peculiar facts and circumstances of case, if the appellants / accused have deposited any fine amount, the same shall be returned to them on proper identification in accordance with law. Accordingly ordered. Sd/- JUDGE SBS/RJ