Criminal Appeal No. 1102 of 2012 · The High Court
Case Details
- 1 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO. 1102 OF 2012 BETWEEN: 1. DEVARAJ S/O LATE HANUMANTHAPPA, AGED ABOUT 44 YEARS, WORKING IN HOTEL, RESIDING AT YALADAKERE, JAVANAGONDANHALLI HOBLI, HULIRIYUR TALUK, CHITRADURGA DISTRICT, NOW RESIDING AT UJJANI, HULIYURADURGA HOBLI, KUNIGAL TALUK. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA 2. CHANDRU S/O LATE LAKKIMOTEGOWDA, AGED ABOUT 45 YEARS, RESIDING AT UJJANI, HULIYURADURGA HOBLI, KUNIGAL TALUK. 3. SRINIVASA S/O LATE KOPPAIAH, AGED ABOUT 45 YEARS, RESIDING AT UJJANI, HULIYURADURGA HOBLI, KUNIGAL TALUK. 4. CHIKKA MARIYANNA @ NARASIGOWDA S/O LATE LAKKAMOTEGOWDA, - 2 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 AGED ABOUT 46 YEARS, RESIDING AT UJJANI, HULIYURADURGA HOBLI, KUNIGAL TALUK (BY SRI. N. JAGADISH BALIGA, ADVOCATE) …APPELLANTS AND: 1. STATE OF KARNATAKA BY HULIYURADURGA POLICE, TUMAKURU DISTRICT.
Legal Reasoning
cannabis plants and having considered material on record, the Trial Court convicted and sentenced for a period of 4 years each and also ordered to pay fine amount of Rs.30,000/- each. Being aggrieved by the said judgment of conviction and sentence, the present appeal is filed before this Court. 3. The counsel appearing for the appellant would vehemently contend that the judgment of conviction and - 5 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 sentence is not in accordance with law and also contend that mandatory compliance of provisions of NDPS Act was not complied. The counsel would vehemently contend that the Trial Court erred in relying upon Ex.P7 and Ex.P8 and also fails to take note of other houses located in the very same area and nothing was found to pinpointing against the accused persons. The counsel would vehemently contend that no documents were seized to show that the land in which ganja was grown belongs to these appellants. The counsel also would vehemently contend that each quantity which was seized is not commercial quantity and no independent witnesses have supported the case of the prosecution. The counsel would vehemently contend that the Trial Court ought not to have convicted in the absence of legal evidence against the appellants. Hence, it requires interference of this Court. 4. Per Contra, the counsel appearing for the respondent –State in the cross-examination of the witnesses who have supported the case of prosecution that is PW4 to PW9, nothing is elicited in the cross- - 6 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 examination even they have not disputed that those houses are not belongs to them and also Trial Court not committed any error, particularly taken note of evidence of P.W.4, P.W.5, P.W.6, P.W.8 and P.W.9. The Trial Court also in page No.23 given the reasoning that the evidence of P.W.4, P.W.5, P.W. 8 and P.W.9 is reliable and trustworthy and all of them cultivated the ganja plants in the houses that is the backyard and side portions of their houses. On Enquiry on the spot also they did not place any document for having license they have obtained and cultivate the same. Hence, the Trial Court rightly comes to the conclusion that evidence of P.W.4, P.W.5, P.W.8 and P.W.9 creditworthy and nothing found to disbelieve the evidence of prosecution. 5. Having heard the learned counsel for the appellants and also the learned counsel for the respondent-State and also taken note of accusation made against the accused persons and also particularly considering the evidence available on record, the point that would arise for consideration of this Court are: - 7 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 1) Whether the Trial Court invoking section 8(b), 8(c), Section 20(a)(i) and 20(a)(ii) of Narcotics Drugs and Psychotropic Substances Act, 1985 and committed an error in convicting and sentencing and whether it requires interference of this Court? 2) What Order? 6. Having heard the appellant’s counsel and also counsel appearing for respondent, no doubt the prosecution mainly relies upon the evidence of P.W.1 to P.W.9. It is also important to note that P.W.1 to P.W.3 who are the independent witnesses have not supported the case of prosecution. It is the case of witnesses P.W.4, P.W. 6, P.W.8 and P.W.9 that they have conducted the raid on the respective houses. The P.W.1, P.W.2 and P.W.3 are independent witnesses but they have turned hostile. When the P.W.1 to P.W.3 who are the independent witnesses turned hostile, Court has to take note of other evidence available on record whether creditworthy or not, if it is creditworthy official witnesses also, the same cannot - 8 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 be discarded and they are the raiding parties. The PW4 is an official but he is not a part of investigation, but this witness supported the case of prosecution that he also accompanied the raiding team and the instruction of their Addl. Superintendent of Police that is P.W.9 and also he has given the evidence, how the raid was conducted and how much quantity of ganja was recovered from the backyard house of each of the accused persons. 7. The Other witness P.W.5 also supports the case of prosecution and he also corroborates in the line of evidence of P.W.5 and he is also a member of raiding party and he also categorically says that on the instructions of Superintendent of Police P.W.9 he accompanied the Police and found the cannabis ganja plants in the premises of the respective houses of the accused persons and the same was seized by drawing the mahazar. The P.W.8 also who was the member of the raiding party, he also supports the case of prosecution and evidence of P.W.4, P.W.5 and P.W.6 are inconformity with each other in conducting of raid on the backyard house of - 9 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 the respective accused persons. I have already pointed out that if evidence of raiding party is trustworthy, Court can look into the same, if it is not trustworthy, then independent evidence of witnesses is required. The P.W.9 who is the Addl. Superintended of Police and also complainant in the case, he categorically stated that on immediate credible information, he has passed the said information to the higher officer as such he has complied requirement of informing his higher officers and obtained their permission and conducted the raid along with P.W.4, P.W.5 and P.W.8. In the cross-examination of P.W.9 also to disbelieve the evidence of this witnesses, nothing is elicited. The evidence of P.W.6 show that accused No.3 is their son and he resides with her and the evidence of P.W.4, P.W.5 and P.W.8 speaks about the growing of ganja in the backyard house of respective accused persons. No doubt, the counsel appearing for appellants would vehemently contend that no document was seized that the property belongs to the respective accused, but during the course of cross-examination, nothing is - 10 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 disputed that the houses which were subject matter of raid are not belongs to them and even not denied the same. Though cross-examination of this witness was done, except the suggestion, nothing worth is elicited with regard to the seizure and conducting of raid is concerned and only common suggestions are made in the evidence of this witnesses and nothing worth is elicited, particularly P.W.4, P.W.5 and P.W. 8 who have accompanied the P.W.9 at the time of conducting the raid and when such material is appreciated by the Trial Court, I do not find any error committed by the Trial Court in considering the case of the prosecution. No doubt, the counsel appearing for appellants would vehemently contend that quantum of ganja which was seized is below 20 Kg and particularly the case of the prosecution also 9 Kg 100 grams from the house backyard and side portion of accused No.1, 12 Kg 300 gms from accused No.2, 18 Kg 200 gms from accused No.3, 15 Kg 400 gms belongs to accused No.4 and thus ganja quantity seized from the each of the accused is more than smaller quantity and lightly lesser than the - 11 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 commercial quantity and the same is also taken note of by the Trial Court even while considering the material on record and also at the time of sentencing the accused persons and imposed sentence of 4 years with fine of Rs.30,000/- each. Nothing is found on record, these accused persons are habitual offenders or having any criminal antecedents particularly committing of offences of NDPS Act and only after charges levelled against them that when the raid was conducted on credible information found ganja in total 70 plants in the backyard houses of respective accused persons. Having taken note of the same, the same is also a ganja leaves and the same were cut and removed at the time of conducting the raid, the same is not the dry quantity of ganja. When such being the case, it is also important to note that the offences invoking Section 20 particularly Section 8(a), 8(b) and 8(c) of NDPS Act, sentence is upto 10 years and no minimum sentence is provided and fine is also upto Rs.1,00,000/- and when such material is found, it is appropriate to interfere with finding with regard to the - 12 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 sentence is concerned, 4 years in the absence of any criminal antecedents, it is appropriate to reduce the same to 2 years and the fine of Rs.30,000/- is not exorbitant and even it could be upto Rs.1,00,000/- and hence, it does requires interference with regard to the fine is concerned. Hence, I answer the point as ‘partly affirmative’. 8. In view of the discussions made above, I pass the following:
Arguments
(BY SMT. RASHMI JADHAV, ADDL. SPP) …RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 21.9.2012 PASSED IN SPL. CASE NO.44/2011 BY THE PRL. SESSIONS JUDGE, (SPL. JUDGE), TUMAKURU - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 8(b), 20(a)(I) OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985. THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT 1. Heard the learned counsel for the appellant and the learned counsel for the respondent. 2. The factual matrix of case of prosecution is that the accused persons indulged in growing of ganja plants on backyard of their houses of Ujjani village and plants were weighing 55 Kg in total and numbering of 70 plants and hence, invoked the offence punishable under Section 8(b), 8(c), 20 and 25 of Narcotic Drugs and Psychotropic Substances Act, 1985 and registered the case and investigated the matter and filed the charge sheet. The accused persons after securing them before the Court did not plead guilty and they were on bail after 6 days of granting of bail and they claim the trial and prosecution examined PW1 to PW9 and got marked Ex.P1 to Ex.P11(a) and also M.O-1 to M.O-4 are marked. The accused were persons examined under Section 313 and thereafter they have not lead any defense evidence. The Trial Court - 4 - NC: 2025:KHC:13621 CRL.A No. 1102 of 2012 having considered the evidence particularly the official witnesses P.W.4 to P.W.9 though, P.W.1 to P.W.3 turned hostile, nothing is elicited in the cross-examination of the prosecution witnesses and believed the evidence of P.W.4, P.W. 8 and P.W.9 and their evidence is reliable and trustworthy and taken note of ganja weighing 9 Kg 100 grams from the house backyard and side portion of accused No.1, 12 Kg 300 gms from accused No.2, 18 Kg 200 gms from accused No.3, 15 Kg 400 gms from the backyard of the house of accused No.4 and having seized the same, sent to the laboratory and report was also received and the same is also proved that they are the
Decision
ORDER i) The Criminal Appeal is allowed in part. ii) The conviction by the Trial Court in Spl.C.No.44/2011 dated 21.09.2012 is affirmed and fine imposed is confirmed, but sentence is modified as two years instead of four years. iii) The accused persons are entitled for the benefit under Section 428 of Cr.P.C for set-off. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 54