- 1 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 23RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 200135 OF 2020 (374(Cr.PC)/415(BNSS)) BETWEEN 1. RAJU S/O RAMANNA @ AMAN ADE AGED 23 YEARS OCC.AGRICULTURE 2. SMT.DROUPATHI W/O DIGAMBAR RATHOD AGED 40 YEARS OCC. HOME MAKER BOTH ARE R/O VILLAGE WALLEPUR TANDA TALUK AURAD DIST. BIDAR – 585 326 ... APPELLANTS (BY SRI.NANDKISHORE BOOB, ADVOCATE) Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 AND THE STATE THROUGH NEW TOWN POLICE STATION BIDAR, NOW REP. BY ADDL. SPP HCKB AT KALABURAGI – 585 103 …RESPONDENT (BY SRI.JAMADAR SHAHABUDDIN, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 13.11.2020 PASSED BY THE PRL.DIST. AND SESSIONS JUDGE AT BIDAR IN SPECIAL CASE (NDPS) NO.53/2014, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 20(b)(ii)(c) OF NDPS ACT 1985. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 15.04.2025 AT KALABURAGI BENCH AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 CORAM: HON'BLE MR. JUSTICE S RACHAIAH CAV JUDGMENT (PER: HON'BLE MR. JUSTICE S RACHAIAH) 1. This appeal has been filed by the appellants / accused Nos.1 and 2 against the judgment of conviction dated 13.11.2020 and order on sentence dated 17.11.2020 in Spl.C.(NDPS) No.53/2014 on the file of the Principal District and Sessions Judge, Bidar, for the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). 2. The ranks of the parties before the Trial Court will be considered henceforth for convenience. The factual matrix of the case are as under: 3. It is the case of the prosecution that, on 03.10.2011 at about 04.45 p.m., accused Nos.1 and 2 were in possession of ganja weighing 13 kg. 500 grams and 17 kg. 250 grams in two bags respectively. They have been apprehended by the respondent - police when they were transporting on a motorcycle bearing its registration No.KA.38.K.2832. After having apprehended the accused - 4 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 Nos.1 and 2 on conducting search, they found the ganja as stated above and the said ganja was seized from their respective possession. A case came to be registered against them for the above said offences and submitted the charge sheet, after conducting investigation. The Trial Court recorded the conviction for the above said offences. Hence, the appellants are before this Court seeking to set aside the impugned judgment. 4. Heard Sri Nandkishore Boob, learned counsel for the appellants and Sri Jamadar Shahabuddin, learned High Court Government Pleader for the respondent - State. 5. It is the submission of the learned counsel for the appellants that the judgment of conviction and order on sentence passed by the Trial Court is erroneous and contrary to the evidence placed on record. 6. It is further submitted that, the PWs.1 and 2 are the eyewitnesses to the incident. However, they have not supported the case. PWs.4 and 7 are the Panchas to - 5 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 Ex.P5, which was drawn as a recovery panchanama of ganja. However, they have not supported the case. 7. It is further submitted that as per Section 50 of the NDPS Act, it is mandatory for the raiding party to follow Section 42 of the NDPS Act insofar as the conduct of search. However, in the present case, P.W.8 being the raiding party, he did not search himself before the accused. Therefore, he has not followed the said procedure. There are a number of contradictions and omissions in the evidence of material witnesses. However, the same has not been followed. In fact, the same is ignored. Therefore, it is appropriate to re-appreciate the evidence, hence, the appeal may be allowed. Making such submissions, the learned counsel for the appellants prays to allow the appeal. 8. Per contra, learned High Court Government Pleader for the State vehemently justified the judgment of conviction and he further submitted that, P.W.8, on credible information, had intercepted the vehicle of which accused No.1 was riding and accused No.2 being a pillion rider, - 6 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 were carrying 30 kg 750 grams of ganja in two separate bags. The said contraband was seized in the presence of panch witnesses and the procedure has been followed stringently, in accordance with law. The Trial Court has rightly appreciated the evidence of all the witnesses and passed the conviction, which is appropriate and relevant. In fact, the appellant has not made out a case to interfere with the said findings in the given set of facts. Therefore, the appeal may be dismissed. Having said thus, learned High Court Government Pleader prays to reject the appeal. 9. Having heard the learned counsel for the respective parties and also perused the findings of the Trial Court, in recording the conviction, it is relevant to take note of the brief history of the case. On 03.10.2011, at about 04.45 p.m., the accused Nos.1 and 2 were allegedly transporting ganja of 30 kgs 750 grams on their motorcycle and it was seized by the respondent – police, on following the procedure contemplated under the NDPS Act. - 7 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 10. P.W.1 stated to be the panch witness to the seizure of a motorbike. The said seizure mahazar was marked as Ex.P3 and the photos are marked as Exs.P1 and P2, however, not supported the case. 11. P.W.2 stated to be the panch witness to the seizure mahazar of the motorcycle, however, not supported the case. 12. P.W.4 stated to be the panch witness to the recovery of ganja, however, not supported the case. The said recovery panchanama is drawn as per Ex.P5. However, P.W.4 has not supported the case. 13. P.W.7 one more panch witness to recovery of ganja, however, not supported the case. 14. The independent witnesses have not supported the case of the prosecution, except the official witnesses. 15. It is the submission of learned counsel for the appellants that the inventory, as is required under Section 52A of the NDPS Act, has not been followed by the prosecution - 8 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 or investigating officer. On perusal of the records and also the evidence of the Investigating Officer, it appears that the said procedure has not been followed. 16. In this context, it is appropriate to refer the judgment of the Hon'ble Supreme Court in the case of Yusuf @ Asif v. State1, wherein the Hon'ble Supreme Court held, in paragraph Nos.14 and 15, as under: “14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn. 15. In Mohanlal’s case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the 1 Criminal Appeal No.3191/2023 dated 13.10.2023 - 9 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.” 17. Having considered the dictum of the Hon'ble Supreme Court stated supra, as the procedure which was required to be followed as per Section 52A of the NDPS Act has not been followed, the entire seizure has to be vitiated. Accordingly, the judgment of conviction passed by the Trial Court has to be set aside, not only on the said ground, but also, on the ground that, other witnesses have not supported the case of the prosecution. 18. Hence, I proceed to pass the following: ORDER i) The Criminal Appeal is allowed. - 10 - HC-KAR NC: 2025:KHC-K:5779 CRL.A No. 200135 of 2020 ii) The judgment of conviction dated 13.11.2020 and order on sentence dated 17.11.2020 in Spl.C.(NDPS) No.53/2014 on the file of the Principal District and Sessions Judge, Bidar, is set aside. iii) The appellants are acquitted of the offence under Section 20(b)(ii)(C) of the NDPS Act. iv) Bail bonds executed, if any, stand cancelled. Sd/- (S RACHAIAH) JUDGE BSS List No.: 19 Sl No.: 1