- 1 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 888 OF 2013 (C) BETWEEN: SRI RAMACHANDRAPPA, SON OF LATE PALLAPPA @ MALLANNA, AGED ABOUT 45 YEARS, RESIDENT OF CHIKKA-THIMMANAHALLI VILLAGE, DODDERI HOBLI, MADHUGIRI TALUK - 572 132. …APPELLANT (BY SMT. ARCHANA K.M., AMICUS CURAIE) AND: STATE OF KARNATAKA REPRESENTED BY POLICE SUB INSPECTOR, BADANAHALLI POLICE STATION, BADAVANAHALLI, MADHUGIRI TALUK - 572 132 TUMKUR DISTRICT. …RESPONDENT (BY SMT. RASHMI JADHAV, ADDL.SPP) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:26.08.2013 PASSED BY THE PRL. SESSIONS JUDGE (SPECIAL JUDGE), TUMKUR IN SPECIAL CASE NO.336/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 20(A)(I) OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985. AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF FIVE YEARS AND TO PAY A FINE OF RS.40,000/- AND IN CASE OF DEFAULT TO PAY FINE AMOUNT, HE SHALL UNDERGO Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 SIMPLE IMPRISONMENT FOR A PERIOD OF EIGHT MONTHS FOR THE OFFENCE P/U/S 20(A)(I) OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED. THIS CRL.A., COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA ORAL JUDGMENT The appellant being the accused in Special Case No. 336 of 2011 on the file of the learned Principal Sessions Judge (Special Judge) at Tumkur, is impugning the Judgment of conviction and order of sentence dated 26.08.2013, for contravention of Section 8(b) punishable under Section 20(a)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the N.D.P.S. Act) and sentencing him to undergo rigorous imprisonment for a period of 5 years and to pay fine of ₹40,000/- for the above said offence, with default sentence. 2. Brief facts of the case as made out by the prosecution is that, on 22.07.2011, on receipt of credible information that deceased had grown ganja plants in his land, PW7-the Dy.S.P of Madhugiri proceeded to the spot along with the - 3 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 photographer-PW3, and two independent panchas-PWs.1 and 2. They found some ganja plants grown in the agricultural land besides the flowering plants referred to as button flowers. The accused was at the spot and in his presence, the ganja plants were removed from the earth and seized under the seizure mahazar in the presence of PWs.1 to 3. It is stated that the plants were weighing about 70 kgs, and since the accused was not having any licence or permit to grow the ganja plants, he said to have contravened Section 8(b), punishable under Section 20(a)(1) of the N.D.P.S Act. After investigation, the charge sheet came to be filed. 3. The Special Court took cognizance of the offence and summoned the accused. The accused pleaded not guilty and claims to be tried. The prosecution has examined PWs.1 to 10, got marked Exhibits P1 to P15 and identified MOs.1 to 7 in support of its contention. The accused has denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C., but has not led any evidence in support of his defence. The Trial Court, after taking into consideration all these materials on record came to the - 4 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, and accordingly proceeded to pass the impugned judgment of conviction and order of sentence as state above. Being aggrieved by the same, the accused is before this Court. 4. Heard Smt.Archana K.M., learned Amicus Curiae for the appellant and Smt.Rashmi Jadhav, learned Additional S.P.P. for the respondent-State. Perused the materials on record including the Trial Court records. 5. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is as under: "Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?" My answer to the above point in the negative for the following: - 5 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 REASONS 6. As narrated above, it is the contention of the prosecution that the accused had grown ganja plants in his land besides flower plants. On credible information, PW.7-the Dy.S.P proceeded to the spot and found the ganja plants. Said plants were removed from the earth and seized in the presence of the accused, independent witnesses-PWs.1 and 2 and the photographer-PW.3 under the seizure mahazar as per Ex.P1. The seized ganja plants were weighing about 70 kgs. The sample was drawn and sent for examination. The FSL report is as per Ex.P14 confirming that the seized substance was ganja. Therefore, charge sheet came to be filed for the above said offence. 7. To prove its contention, the prosecution has examined PWs.1 and 2-the independent pancha witnesses to Ex.P1. Both these witnesses have not supported the case of the prosecution for the reasons best known to them. 8. PW.3 is a photographer who accompanied the Dy.S.P, who proceeded to the spot and took photograph of the land. He has fully supported to the case of the prosecution, - 6 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 saying that, he had seen the ganja grown in the land in question where the accused was present. The police have removed the ganja plants and seized the same under the mahazar Ex.P1, for which he is one of the signatory, who took photographs as per Exs.P4 to 7 and identified the ganjas as MOs.1 to 6. Even though this witness was cross-examined at length, nothing has been elicited from him to disbelieve his version. It is specifically stated that the accused is seen at the scene of occurrence as could be seen in Exhibit P4. Identity of the accused as seen in Exhibit P4 is not in dispute. No ill-will or motive is suggested against PW.3 to contend that he is a interested witness. The tenor of cross-examination suggests that the accused had admitted that the witnesses have gone to the spot along with Dy.S.P, and he was present when spot mahazar-Ex.P1 was drawn. 9. PWs.4 and 5 are the neighbours and they have not supported the case of the prosecution. However, it is quite natural that the neighbours not supporting the case of the prosecution. - 7 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 10. PW.6 is the mother of the accused, who is said to be the owner of the land in question. She has deposed before the Court that after the death of her husband, the Record of Rights stood in her name. The accused is her son and he was cultivating the land in question. The Record of Rights is marked as Ex.P10. This witness was not cross-examined by the learned counsel for the accused. Therefore, the fact that the land belongs to the family of the accused and it was the accused who was cultivating the land was virtually admitted by the accused. 11. PW.7-the Dy.S.P, who is the Gazetted Officer, has received credible information and proceeded to the spot, and has drawn the spot mahazar as per Ex.P1. Even though this witness was cross-examined at length, there is no dispute regarding the seizure of ganja plants at the scene of occurrence under Ex.P1. The minor discrepancies highlighted by the learned Amicus Curiae do not go to the roof of the matter. No ill-will or motive was suggested against this witness to falsely implicate the accused. PW.8 is the Computer Operator who issued the Record of Rights-Ex.P10. When there is no dispute - 8 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 regarding the ownership of the land in question, not much importance could be given to the evidence of PW.8. 12. PW.9 is the Agricultural Officer who examined the mud and has given the report as per Ex.P12. This document is also not of much help either to the prosecution or to the defence. Exhibit P14 is the FSL report, according to which, the substance sent for examination is mentioned as cannabis. 13. It is pertinent to note that Ex.P14 is marked through PW.10-the Investigating Officer. No objection was raised during marking of Ex.P14, nor there is any cross-examination to PW.10 about the same. Under such circumstances, Exhibit P14 remains disputed. It is not permissible for the learned counsel for the appellant to raise any dispute for the first time before the First Appellate Court on the ground that the author of the document is not examined. 14. Learned Amicus Curiae has contended that there is non-compliance of Sections 41(2) and 42(1) of the NDPS Act and therefore, the accused is entitled for acquittal. A bare reading of Sections 41 and 42 of NDPS Act, refers to a building, - 9 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 conveyance or a closed place. It is settled position of law that Sections 41 and 42 of the NDPS Act are applicable when, search was held in a building, conveyance or in a closed place. Here admittedly, the ganja plants were found grown in an open land. Under such circumstances, these provisions cannot be made applicable to contend that there is a procedural irregularity in conducting the raid and seizing the contraband. 15. Learned Amicus Curiae places reliance on the decision of Hon'ble Apex Court in Sukhdev Singh v. State of Haryana1, which refers to the raid held in the house where the contraband was found. She also refers to the decision of the Hon'ble Apex Court in State of Rajasthan v. Purkha Ram2, where the accused was alleged to be in possession of illicit material and his personal search was held. She has also placed reliance on the decision of Hon'ble Apex Court in Karnail Singh v. State of Haryana3, where it is stated that the contraband in question was found in the autorikshaw. That is why the Courts have referred to Sections 41(2) and 42(1) of 1 AIR 2013 SC 953 2 MANU/RH/0227/1996 3 MANU/SC/1323/2009 - 10 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 NDPS Act. But in the present case these provisions have no application. 16. PW7-the Dy.S.P has deposed before the Court that he has received credible information regarding growing of ganja in the land belonging to the accused. Immediately, he proceeded to the spot after orally informing his higher officer about the said fact. From the materials on record, I do not find any illegality in the procedure adopted by PW.7 as the scene of occurrence is not either a building, conveyance nor a enclosed place. Hence none of these provisions are applicable. In view of the discussions held above, while referring to the evidence of PWs.3, 6, 7 and 10, I am of the opinion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and he is liable for conviction. 17. I have gone through the impugned judgment of conviction and order of sentence. The Trial Court has appreciated the materials on record in a proper perspective and proceeded to convict the accused and sentenced him as stated above. I do not find any reason to interfere with the same. - 11 - HC-KAR NC: 2025:KHC:20558 CRL.A No. 888 of 2013 Hence, I answer the above point in the negative and proceed to pass the following: ORDER The appeal is dismissed. Registry to send back the original records along with copy of this judgment to the Trial Court, for information and for needful action. The Secretary, the High Court Legal Services Committee, Bengaluru, is directed to pay the prescribed fees to the learned Amicus Curiae. Sd/- (M G UMA) JUDGE MKM List No.: 1 Sl No.: 27