- 1 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 24TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR CRIMINAL APPEAL NO. 100128 OF 2019 (C) C/W CRIMINAL APPEAL NO. 100032 OF 2019 CRIMINAL APPEAL NO. 100034 OF 2019 IN CRL.A. NO.100128 OF 2019: BETWEEN: 1. ASIF ABDULMUNAF BURANAWALE AGED ABOUT: 28 YEARS, R/A: NO.160, HOSUR MATAGALLI, SHAHAPURA, BELAGAVI-590001. 2. SAJJANA NARASIMHA HERAVALAKARA AGED ABOUT: 25 YEARS, R/A: NO.88, GANESHNAGAR, ASNODA BARADEJA, GOA-403503. …APPELLANTS (BY SRI. SHER ALI KHAN, ADVOCATE FOR SRI. AKSHAY KATTI AND SRI. ANAND ASHTEKAR, ADVOCATES FOR A1; SRI. S.S.PATIL AND SRI. SANJAY CHANAL, ADVOCATES FOR A2) AND: THE STATE OF KARNATAKA REPRESENTED BY TILAKWADI POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD-580011. …RESPONDENT (BY SRI. ASHOK T.KATTIMANI, ADDL. GOVT. ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION AND THE ORDER OF SENTENCE DATED 28.12.2018 PASSED BY THE II ADDL. DIST. & SESSIONS JUDGE & SPECIAL JUDGE, BELAGAVI, Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.01.28 15:15:48 +0530 - 2 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 IN SPL.CASE NO.87/2007, FOR THE OFFENCES PUNISHABLE UNDERA) SECTION 20(c) OF THE NDPS ACT, FOR A PERIOD OF 10 YEARS OF RIGOROUS IMPRISONMENT AND TO PAY A FINE OF RUPEES ONE LAKH ONLY (RS.1,00,000/-) IN DEFAULT OF PAYMENT OF FINE TO UNDER GO RIGOROUS IMPRISONMENT FOR A PERIOD OF TWO (02) YEARS AND ETC. CRL.A NO. 100032 OF 2019: BETWEEN: SHRI. MAHAMMADALI @ MUNNA LARIF SAYYAD AGE: 27 YEARS, OCC: PRIVATE SERVICE, R/O. R P NAGAR PEN, TQ: RAYAGHAD, MAHARASHTRA. …APPELLANT (BY SRI. S.B. DEYANNAVAR, ADVOCATE) AND: THE STATE OF KARNATAKA THROUGH TILAKWADI POLICE STATION, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT BENCH DHARWAD. …RESPONDENT (BY SRI. ASHOK T.KATTIMANI, ADDL. GOVT. ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING TO, SET ASIDE THE JUDGMENT OF CONVICTION DATED 28.12.2018 AND ORDER OF SENTENCE DATED 31.12.2018, PASSED BY THE II-ADDL. DIST. & SESSIONS JUDGE, BELAGAVI, IN SPL. CASE NO.87/2007 AND ORDER THE ACQUITTAL OF THE APPELLANT/ACCUSED NO.3 FOR THE OFFENCES P/U/S 20(C), 21(C), 22(C) and 23(C) OF NDPS ACT HEREIN IN THE CHARGES LEVELED AGAINST HIM IN THE ABOVE CASE. IN CRL.A. NO.100034 OF 2019: BETWEEN: AKASH BALCHANDRA DESAI AGE. 45 YEARS, OCC. NIL, R/O. HOUSE NO.519, BOLMAL GALLI, - 3 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 SHAHPUR, BELAGAVI. …APPELLANT (BY SRI. SANDESH J.CHOUT, SENIOR COUNSEL FOR SRI. SRINAND A.PACHHAPURE AND SRI. RAJENDRA R.PATIL, ADVOCATES) AND: THE STATE OF KARNATAKA REP. BY TILAKWADI POLICE STATION, R/BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. …RESPONDENT (BY SRI. ASHOK T.KATTIMANI, ADDL. GOVT. ADVOCATE) THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE PASSED BY THE II-ADDL. DIST. & SESSIONS JUDGE & SPL. JUDGE, BELAGAVI, IN SPL.S.C.NO.87/2007, DATED 28.12.2018 AND ACQUIT THE APPELLANT FOR THE CHARGES LEVELED AND ORDER OF CONVICTION PASSED FOR THE OFFENCES P/U/S 20(c), 21(c), 22(c), 23(c) OF NDPS ACT, 1985. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR ORAL JUDGMENT 1. These appeals are filed by the appellants (accused Nos. 1 to 4) challenging the judgment of conviction and order of sentence passed by the learned Sessions Court, wherein the accused were convicted for the offences punishable under Sections 20C, 21C, 22C, and 23C of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and sentenced to undergo a maximum imprisonment of 10 years. - 4 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 2. Based on a complaint lodged by Mr. Mahanteswar, Police Inspector, Tilakwadi Police Station, a case was registered against the appellants and two other individuals in Crime No. 85/2007. It was alleged that on 28/05/2007, at around 3:00 p.m., the complainant received credible information that two persons traveling in a vehicle bearing registration No. MH-06-F-7860 were illegally transporting hashish, a narcotic drug, to Goa for sale. The information further stated that the contraband would be transported via the Goa-Khanapur Road. Upon receiving the information, the complainant recorded the same in the station diary and secured the presence of CW-2 (Kashiram Bhimsen Chavan) and CW-3 (Papalal Kasuti) as panch witnesses. 3. The complainant also sought the presence of CW-6, Dr. Vijaykumar Toragal, Assistant Commissioner, Belagavi, as a gazetted officer. Subsequently, a police team, including constables and other officers, proceeded to the designated location and apprehended accused Nos. 1 and 2 at approximately 5:30 p.m. while they were traveling in the vehicle bearing registration No. MH-06-F-7860. 4. Upon searching the vehicle, the raiding team discovered an airbag containing 200 small plastic covers filled with hashish weighing 5 kilograms in total. A sum of ₹2,10,000 was also recovered. From accused No. 1, a loaded revolver and 10 live bullets were seized. 5. Additionally, from accused No. 2, the team recovered a black airbag containing five plywood frames with concealed - 5 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 hashish pencils, each weighing 300 grams. Plastic covers containing hashish weighing 513 grams and 510 grams, respectively, and ₹35,000 in cash were also seized. 6. During the investigation, the accused disclosed that they did not possess a valid license to transport the contraband or the firearm. After completing the panchanama, the contraband and related materials were seized, and the accused were arrested. The police subsequently registered the case under Crime No. 85/2007 at Tilakwadi Police Station. 7. At around 7:00 p.m. on the same day, Dy. S.P. Gangareddy took over the investigation. Based on the accused’s statements, the team raided house No. 226, near Utsav Hotel, Rani Channammanagar, where accused Nos. 3 and 4 were apprehended. Contraband materials, 10 live bullets, a cupboard containing ATM cards (including one from IDBI Bank), a driving license belonging to accused No. 1, and a weighing machine were seized. A detailed panchanama was conducted, and accused Nos. 3 and 4 were arrested. 8. The Special Court framed six charges under Section 215 of the Cr.P.C., to which the accused pleaded not guilty. The prosecution examined 49 witnesses (P.Ws. 1 to 49), produced 231 documents (Exs. P.1 to P.231), and marked 92 material objects (M.O.Nos. 1 to 92). 9. The trial court, after appreciating the evidence and hearing arguments, framed points for consideration and held that - 6 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 the prosecution had established the guilt of the accused beyond all reasonable doubt. The trial court, thus, passed the impugned judgment of conviction and order of sentence. 10. Sri Sandesh S. Chouta, learned senior counsel representing the appellants, argued that the trial was vitiated due to non-compliance with Section 313 of the Cr.P.C. It was contended that 247 questions were posed to all four accused in a single day, many of which were irrelevant, repetitive, or not incriminating. This, according to the counsel, deprived the accused of a fair opportunity to explain the circumstances against them. The counsel further submitted that the accused had already served more than six and a half years of their 10-year sentence and, given that the incident occurred in 2007, remanding the matter to frame charges afresh would serve no purpose. 11. Reliance was placed on the judgment of the Hon’ble Supreme Court in Tara Singh v. State (AIR 1951 SC 441), wherein it was emphasized that non-compliance with mandatory provisions under Section 313 of the Cr.P.C. could vitiate the trial. 12. The learned Additional Government Advocate argued that the questions posed to the accused strictly complied with Section 313 of the Cr.P.C. and that no prejudice was caused to the accused. It was contended that the judgment of conviction did not warrant interference. 13. Upon careful consideration of the submissions and a thorough examination of the trial court records, the sole point for - 7 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 determination is “Whether the Special Court followed the procedure prescribed under Section 313 of the Cr.P.C. while posing questions to the accused regarding the incriminating circumstances against them?” 14. The trial court records indicate that after the prosecution witnesses were examined, the trial proceeded to record the statements of the accused under Section 313 of the Cr.P.C. As many as 247 questions were posed to the four accused in a single day. Many questions were repetitive or irrelevant, depriving the accused of an adequate opportunity to respond to incriminating circumstances. 15. The gist of the questions posed to all the accused herein reads as follows: A1 A2 A3 A4 Question No.1 and 2 are concerning the information that PW1 received at the Police Station and the steps he took after receiving the information. Such information may not be known to the accused. [Paper Book page no. 23 and 24] Question No.1 and 2 are concerning the information that PW1 received at the Police Station and the steps he took receiving after the information may not be known to the accused. [Paper Book page no. 95 and 96] Question No. 1 to 12 relate to the incidents that occurred on 28/05/2007 and the raid conducted on Accused No.1 and 2. These same questions have been put to Accused No.3 which is not relevant to this accused and he would have no way knowing of what transpired on the previous day as Accused No.3 was only Question No. 1 to 14 relating to the incidents that occurred on 28/05/2007 and the raid conducted on Accused No.1 and 2. These same questions have been put to Accused No.4 which are not relevant to this accused as he was only apprehended on 29/05/2007. [Paper Book page no. 239 to 244] - 8 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 apprehended on 29/05/2007. [Paper Book page no. 167 to 171] Question No.3 and 14 are of the events that transpired at the raid and from the point of view of PW1 and none of the questions have been put to the accused which are relevant to him. The questions include the marking of material objects and signatures of other raid officers being taken on the mahazar which are of no relevance in terms of incriminating circumstances. [Paper Book page no. 24 to 28] Question No.3 to 14 are of the events that transpired at the raid and from the point of view of PW1 and none of the questions have been put to the accused which are relevant to him. [Paper Book page no. 96 to 100] Question No.15 onwards are the testimonies of various witnesses from the DTDC officers and employees of Mahesh travels. Several irrelevant questions have been asked with regard to these witness testimonies. An example of the - 9 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 same is Question No.21 asked to all the accused (question number may vary). Wherein the duration of an employee of Mahesh travels is stated and put to the accused as a question. [Paper Book page no. 28 to 94] 16. A perusal of the statement recorded under Section 313 of the Cr.P.C. indicates that several questions were posed to the accused which were unrelated to the circumstances incriminating them or not incriminating or repetitive. The Hon’ble Supreme Court, in the case of Tara Singh v. State (supra), emphasized the importance of adhering to the provisions of Section 313 of the Cr.P.C. in the following terms: “I cannot stress too strongly the importance of observing faithfully and fairly the provisions of Section 342, Criminal Procedure Code [now Section 313 Cr.P.C.]. It is not a proper compliance to read out a long string of questions and answers made in the Committal Court and ask whether the statement is correct. A question of that kind is misleading. It may mean either that the questioner wants to know whether the recording is correct, or whether the answers given are true, or whether there is some mistake or misunderstanding despite the accurate recording. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. The whole - 10 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. I do not suggest that every error or omission in this behalf would necessarily vitiate a trial because I am of the opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion, the disregard of the provisions of Section 342, Criminal Procedure Code, is so gross in this case that I feel there is grave likelihood of prejudice.” 17. In Birdhichand Sarda v. State of Maharashtra, the Hon’ble Supreme Court held that questions put to the accused were wholly irrelevant and did not pertain to any circumstance appearing in the evidence against them. This contravened the scope of an accused’s examination under Section 313 of the Cr.P.C., rendering the conviction and sentence liable to be set aside. 18. In Asraf Ali v. State of Assam, the Hon’ble Supreme Court ruled that Section 313 of the Cr.P.C. is based on the principles of natural justice. The Court observed that failing to pose necessary questions to the accused, as in the present case, - 11 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 creates a substantial handicap for the accused. The accused may legitimately contend that evidence cannot be used against them without affording an opportunity for explanation. It was further held that: “It is insufficient to generally ask the accused, ‘Having heard the prosecution evidence, what do you have to say about it?’ The accused must be questioned separately about each material circumstance intended to be used against them. Where no specific question is put by the trial court on inculpatory material in the prosecution evidence, it would vitiate the trial.” 19. Similarly, in Ratutu Bodra and Another v. State of Bihar, the Hon’ble Supreme Court set aside the conviction of the appellants on the ground that incriminating circumstances were not put to them during their Section 313 examination. The Court held that any such material not put to the accused could not be used against them, thereby vitiating the proceedings. In that case, the Court also considered that the offence had been committed more than 15 years earlier, and the appellants had already served more than four years of their sentence. The Court, therefore, set aside the conviction and acquitted the accused. 20. In the present case, the incident occurred in the year 2007, and as of today, the appellants have already served more than six and a half years of their 10-year sentence. In view of the principles laid down in the aforementioned cases, no purpose would be served by remitting the matter to the trial court, as doing so would deprive the accused of their right to personal liberty. - 12 - NC: 2025:KHC-D:1429 CRL.A No. 100128 of 2019 C/W CRL.A No. 100032 of 2019 CRL.A No. 100034 of 2019 21. In light of the above, the trial stands vitiated due to non-compliance with the mandatory provisions under Section 313 of the Cr.P.C., and the judgment of conviction is liable to be set aside. Accordingly, I pass the following: ORDER i) The appeals are allowed. ii) The impugned judgment of conviction dated 28.12.2018 and order of sentence dated 31.12.2018 passed by the learned II Additional district and Sessions Judge and Special Judge at Belagavi in Spl.C.No.87/207 is hereby set aside. iii) Appellants/accused are acquitted for the aforesaid offences. iv) Bail bonds, if any, stands cancelled. Sd/- (HEMANT CHANDANGOUDAR) JUDGE AC Ct:vh List No.: 1 Sl No.: 35