KRISHNA @ KISHU @ KRISHNA NAIK v. THE STATE OF KARNATAKA

CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT

1. The appellant/accused has preferred this appeal against the judgment of conviction and order on sentence dated 03.06.2019 passed in Special (NDPS) Case No.13/2017 by the Special Judge, Shivamogga (for short 'the trial Court').

2. For the sake of convenience, the parties herein are referred to as per their rank before the trial Court.

3. Brief facts leading to this appeal are that, the Sub- Inspector of Excise, Shivamogga Range, submitted the charge sheet against the accused for the offence under Section 8(b) read with 20(a)(i) of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').

4. It is alleged by the prosecution that on 07.10.2016 at around 07.30 am., the Excise Sub-Inspector, Shivamogga, has conducted raid on the basis of the credible information - 3 - NC: 2026:KHC:5926 CRL.A No. 1042 of 2019 HC-KAR received by him at around 06.30 a.m., on the same day, along with the staff and other officers. At around 06.30 am., they left Shivamogga Excise Office and had been to Sy.No.80 of Kunchenahalli Thanda. The informer has shown the land of accused, namely Krishna @ Kishu @ Krishna Naik S/o Durga Naik. In between the cotton crops, Cannabis plants (Ganja) were grown. The said land has been under illegal cultivation of the accused, which belongs to Forest Department. At the time of raid, complainant and his staff noticed 56 Cannabis plants grown in the middle of the cotton crops and they have seized the same under panchanama. Thus, the accused has committed the alleged offence.

5. After filing the charge sheet, case was registered in Spl.(NDPS) Case No.13/2017. The accused had obtained anticipatory bail. Upon hearing on charges, the trial Court has framed charges for the commission of alleged offence. The same were read over and explained to the accused. - 4 - NC: 2026:KHC:5926 CRL.A No. 1042 of 2019 HC-KAR Having understood the same, accused pleaded not guilty and claimed to be tried.

6. To prove the guilt of the accused, prosecution has examined five witnesses as PWs.1 to 5. Thirty documents were marked as Exhibits P1 to P30 and four material objects were marked as MO.Nos.1 to 4.

7. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C was recorded. The accused has totally denied the evidence of prosecution witnesses, however, did not choose to lead any defence evidence on his behalf. Having heard the arguments on both sides, the trial Court has convicted the accused for the offence under Section 8(b) read with Section 20(a)(i) of NDPS Act and sentenced to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rs.20,000/-. Being aggrieved by the judgment of conviction and order on sentence, the appellant/accused has preferred this appeal.

8. Learned counsel for the appellant Sri Prasad B S, would submit that the trial Court has committed a serious - 5 - NC: 2026:KHC:5926 CRL.A No. 1042 of 2019 HC-KAR error in holding that prosecution has proved the case beyond all reasonable doubt. The Investigating Officer has not complied with the mandatory provisions of Sections 42 and 50 of NDPS Act. The learned Special Judge has committed serious error in relying on the evidence of PW1 to PW3 who are police officials and are interested prosecution witnesses and further their evidence is not corroborated by any independent witness. PW3 has clearly deposed that, by the time PW2 and she reached the spot, they had already removed the Ganja plants and kept them ready for seizure. This itself shows that the panch witnesses are unaware from where did PW1 get the ganja plants. Hence, very seizure of ganja plants from Sy.No.80 cannot be accepted. The Learned Special Judge has committed serious error in relying on the evidence of official witness-PW1 to PW3 on the ground that they have motive or enmity against the appellant to involve him in this case. The prosecution has failed to prove that the accused has grown ganja in the alleged disputed land. The - 6 - NC: 2026:KHC:5926 CRL.A No. 1042 of 2019 HC-KAR Exhibit P7-RTC itself clearly shows that the appellant is not the owner of the land and the accused was not at the spot. On all these grounds, it is sought to allow this appeal.

9. As against this, the learned High Court Government Pleader, B. Lakshman, would submit that the trial Court has properly appreciated the materials and records in accordance with law and facts and sought for dismissal of the appeal.

10. Having heard the arguments on both sides and on perusal of the materials on record, the following points would arise for consideration: (1) Whether the prosecution proves beyond all reasonable doubt that the accused has unauthorisedly cultivated the land survey No.80 of Kunchenahalli Thanda and had grown 56 Ganja plants amidst the crops? (2) Whether the trial Court justified convicting the accused for the commission of offence under Section 8(b) read with Section 20(a)(i) of NDPS Act? (2) What order? - 7 - NC: 2026:KHC:5926 CRL.A No. 1042 of 2019 HC-KAR

11. My answer to the above points as under: Point Nos.1 and 2 - in Negative Point No.3 - as per final order.

12. It is the case of the prosecution that the accused had grown 56 Ganja plants by unauthorisedly cultivating the land in survey No.80 of Kunchenahalli Tanda, Shivamogga Taluk. To substantiate this, the prosecution has not produced the RTC extract pertaining to the said survey number. Admittedly, the in survey No.80 of Kunchenahalli Thanda is a government land. The investigating officer has not produced any material to show that the accused was unauthorisedly cultivating on the said land. The prosecution has produced Exhibit P16 issued by Panchayat Development Officer, Village Panchayat, Kunchenahalli, which is addressed to Sub- Inspector of Excise, Shivamogga Range, Shivamogga, is a covering letter. As per letter, the Panchayat Development Officer has furnished the report of all the cultivators in the said survey number. The name of - 8 - NC: 2026:KHC:5926 CRL.A No. 1042 of 2019 HC-KAR Krishna @ Kisha son of Durga Nayaka is shown. But the extent of land is not shown. In the grant column, it is stated that Krishna @ Kisha son of Durga Nayaka has submitted application in the name of his wife-Kavita Bai. The Village Accountant or the Tahsildar have not been examined before the court to show that the accused had unauthorisedly cultivated in survey No.80 of Kunchenahalli Tanda. Exhibit P19 is issued by the Forest Rights Committee, Kunchenahalli Panchayat Office showing the list of beneficiaries of the Forest land in Survey No.80 of Kunchenahalli Thanda, in which the name of the accused is not found. However, the name of Kavita Bai is found. The xerox copy of RTC extract is produced in which it is stated that survey No.80 of Kunchenahalli Thanda is measuring 13,800 acres standing in the name of Government and is shown as 'Aranya'. The name of unauthorised cultivators in this land has not been shown in the RTC extract. - 9 - NC: 2026:KHC:5926 CRL.A No. 1042 of 2019 HC-KAR

13. Viewed from any angle, I do not find any material to show that the accused is the unauthorized cultivator of the subject land. Accordingly, prosecution has failed to prove that the accused has unauthorisedly cultivated and grown 56 ganja plants in the middle of the crops. Hence, I answer the Point no.1 in the negative. Regarding Point 2:

14. When the prosecution has failed to prove that the accused has unauthorisedly cultivated the land in Survey No.80 of Kunchenahalli Thanda, the question of growing ganja plants in the middle of the crops by the accused, does not arise. The investigating officer without proper investigation, has mechanically submitted charge-sheet against the accused. Accordingly, prosecution has failed to prove the guilt of accused for the commission of alleged offence. Hence, I answer Point No.2 in the negative. Regarding Point 3:

15. For the aforesaid reasons and discussions, I proceed to pass the following: - 10 - NC: 2026:KHC:5926 CRL.A No. 1042 of 2019 HC-KAR O R D E R (i) Appeal is allowed. (ii) The judgment of conviction and order on sentence dated 03rd June, 2019 passed in Special (NDPS) Case No.13 of 2017 by the Special Judge, Shivamogga, is set aside. (iii) The appellant/accused is acquitted for the offence under Section 8(b) read with Section 20(a)(i) of NDPS Act, 1985. (iv) Fine amount, if any, deposited by the accused, shall be returned to him accordance with law. Registry is directed to send copy of the judgment along with trial Court records to the concerned Court. Sd/- (G BASAVARAJA) JUDGE DHA List No.: 1 Sl No.: 53