- 1 - CRL.A No.100333/2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 100333 OF 2017 BETWEEN: STATE OF KARNATAKA REP. BY THE CIRCLE POLICE INSPECTOR MALAMARUTI POLICE STATION, BELAGAVI DISTRICT THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …APPELLANT (BY SRI. M.B. GUNDAWADE, ADDL. SPP.) AND: BALAPPA S/O. BASAVANNEPPA DODDAMANI AGE: 38 YEARS, R/O: DUMMARATTI, TQ: GOKAK, DIST: BELAGAVI. …RESPONDENT (BY SRI. VITTHAL S. TELI, ADVOCATE) THIS APPEAL IS FILED UNDER SECTIONS 378(1) AND (3) OF CR.P.C., PRAYING TO, GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 31.05.2017 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, BELAGAVI IN SPECIAL CASE NO.27/2013 AND TO SET ASIDE THE JUDGMENT AND ORDER ACQUITTAL DATED 31.05.2017 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, BELAGAVI IN SPECIAL CASE NO.27/2013 AND ETC. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 20.03.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, MADE THE FOLLOWING: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA Date: 2025.04.17 15:16:33 +0530 - 2 - CRL.A No.100333/2017 CAV JUDGMENT (PER: THE HON’BLE MR. JUSTICE G BASAVARAJA) State has preferred this appeal against the judgment of acquittal dated 31st May, 2017 passed in Special Case No.27 of 2013 passed by the II Additional Sessions Judge, Belagavi (for brevity, hereinafter referred to as “the trial Court”). 2. For the sake of convenience, the parties herein are referred to as per their rank and status before the trial Court. 3. Facts in brief leading to this appeal are that Malamaruti Police have submitted charge sheet against the accused for commission of offence under Section 20(b)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short hereinafter referred to as “NDPS Act”). It is alleged by the prosecution that on 19th March, 2012 near Vantamuri Bridge of Belagavi within the limits of Malamaruti Police Station, the accused was found in possession of 1.400 kilograms of Ganja amounting to Rs.14,000/-. While at the time of transporting the same - 3 - CRL.A No.100333/2017 to sell without there being licence or permission, the Malamaruti Police apprehended him and filed charge sheet under Section of under Section 20(b)(ii)(b) of NDPS Act. After completion of the investigation, the Investigating Officer submitted charge sheet against the accused for the alleged commission of offence and a case came to be registered SC No.27 of 2013. On hearing charges, the learned Sessions Judge framed charges and the same was read over and explained to the accused in the language known to him. The accused pleaded not guilty and claimed to be tried. To prove the case, prosecution in all, examined 9 witnesses as PWs1 to 9 and twelve documents were marked as Exhibits P1 to P12 and sample ganja was marked as MO1. After closure of prosecution evidence, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused denied all the incriminating material available against him and but has not chosen to adduce any defence evidence on his behalf. Having heard on both sides, the Trial Court acquitted the accused for the offence punishable under Section under Section 20(b)(ii)(b) of NDPS Act. Being - 4 - CRL.A No.100333/2017 aggrieved by the impugned judgment of acquittal, the State has preferred this Appeal. 4. Sri M.B. Gundawade, learned Additional State Public Prosecutor submits that the judgment and order of acquittal passed by the trial Court is contrary to law and facts and evidence on record and the same is not sustainable in law. He submitted that PW1 is the complainant and eye-witness to the incident. He has seized the contraband article from the possession of the accused and also apprehended the accused at the spot in the presence of witnesses. PWs.4 and 5 Police were present at the spot. PW8 is the Investigating Officer who submitted the charge sheet against the accused. All these would support the case of the prosecution. However, the trial Court has acquitted the accused only on the ground that the Investigating Officer has not complied with the mandatory provision of Section 50 of the NDPS Act, which is not applicable to this case. To buttress his arguments, learned Additional SPP relied upon the decision in the case - 5 - CRL.A No.100333/2017 of MEGH SINGH v. STATE OF PUNJAB reported in (2003) 8 SCC 666. 5. As against this, Sri Vitthal S. Teli, the learned counsel appearing for the respondent would submit that Ex.P4 that is the raid panchanama, was prepared in the Police Station. In this regard, PW4 has clearly admitted in his cross-examination that HC No.1981 [CW39] has written this panchanama and at the time of raid and he was not present on the spot. This admission clearly goes to show that the panchanama is created in the Police Station. In addition to this, PWs.2 and 3, the alleged panchas, have deposed in their evidence that the Police have took their signatures in the Police Station and they have not supported to the case of the prosecution. The Investigating Officer has not complied with the mandatory provisions of Section 50 of the NDPS Act. Hence, the prosecution has failed to prove the guilt of the accused. The Trial Court has properly appreciated the evidence on record in accordance with law and facts. There are no grounds to interfere with the impugned judgment of - 6 - CRL.A No.100333/2017 acquittal. On all these grounds, the learned counsel sought for dismissal of the appeal. To substantiate his argument he relied on the decision in the case of VIJAYSINH CHANDUBHA JADEJA v. STATE OF GUJARAT reported in (2011)1 SCC 609 and in the csse of ASHOK KUMAR SHARMA v. STATE OF RAJASTHAN reported in (2013) 2 SCC 67. 6. Having heard the learned counsel appearing for the parties, the following points would arise for my consideration: 1. Whether the impugned judgment and order of acquittal passed by the trial Court State calls for interference by this Court? 2. What order? 7. My answer to the above points would as under: Point No.1: in the negative. Point No.2: as per final order. Regarding Point No.1: 8. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and - 7 - CRL.A No.100333/2017 power of Appellate Court in appeal against the order of acquittal. 9. In the case of Motiram Padu Joshi & Others v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus: “23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:- “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted - 8 - CRL.A No.100333/2017 conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 10. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under: - 9 - CRL.A No.100333/2017 “16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well- established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. …” 11. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus: “4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against - 10 - CRL.A No.100333/2017 conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis-appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, - 11 - CRL.A No.100333/2017 recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.…” 12. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under: “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.” 13. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus: “12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate - 12 - CRL.A No.100333/2017 court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.” 14. I have examined the materials placed before this Court. It is the case of the prosecution that on 19.03.2012 near Vantamuri Bridge of Belagavi within the limits of Malamaruti Police Station, the accused was found in possession of 1.400 kilograms of Ganja amounting to Rs.14,000/-. While at the time of transporting the same to sell without there being licence or permission, the Malamaruti Police apprehended him and filed charge sheet under Section of under Section 20(b)(ii)(b) of NDPS Act. 15. To prove the case of the prosecution, the prosecution examined 9 witnesses as PWs.1 to 9 and 12 documents were marked as Exs.P1 to P12. Sample of Ganja was marked as MO1. - 13 - CRL.A No.100333/2017 16. It is the case of the prosecution that the Investigating Officer has seized this Ganja from the possession of the accused under Ex.P4 which indicates that this mahazar conduced by the Police on 19.03.2012 between 14:20 hours to 16:00 hours in the presence of panchas. 17. PWs.2 and 3 have not supported the case of the prosecution. Even in the cross-examination made by Public Prosecutor after treating them as hostile witnesses with the permission of the Court, the prosecution has failed to elicit any favourable answers from them. PW4 has clearly admitted in his cross-examination that HC No.1981 [CW13] has written this panchanama and he was not present on the spot. PWs.2 and 3 have deposed in their evidence that Police have took their signatures in the Police Station and PW1 – Sub Inspector of Police has deposed that he has conducted raid panchanama as per Ex.P4 in the presence of panchas. After conducting this raid panchanama, PSI – J.M.Khalimirchi i.e., PW1 has lodged a complaint before the SHO as per Ex.P6. On the - 14 - CRL.A No.100333/2017 basis of this complaint, the SHO of Malamaruti Police Station, PW9 – Suresh Durgappa Kamble, ASI registered the case in Crime No.112/2012 against the accused for the commission of offences punishable under Section 20(b)(ii)(b) NDPS Act and thereafter FIR was submitted to the Court on 19.03.2012 at 21:00 hours as per Ex.P11. PW9 also deposed that on 19.03.2012 he has received the complaint along with panchanama MO1. The accused was also produced before him. Though this PW9 has received this Ex.P4 raid panchanama and he has inserted the properties in P.F. No.62/2012 dated 19.03.2012 he has submitted this P.F. to the jurisdictional Magistrate only on 22.03.2012 without production of Ex.P4. Only at the time of filing of the charge sheet, the Investigating Officer has submitted this raid panchanama. If really the Investigating officer seized 1.400 kilograms of Ganja from the possession of the accused as alleged by the prosecution, the Investigating Officer ought to have submitted the report of seizure at the earliest point of time to the jurisdictional Magistrate as required under Section 102 of Cr.P.C. and also Section 50 of NDPS Act. The Investigating - 15 - CRL.A No.100333/2017 Officer has submitted the charge sheet on 13.03.2013 after a lapse of one year. The delay in submitting the property form before the Court has not been explained by the Investigating Officer. Accordingly, the Investigating Officer has failed to comply with the mandatory provisions of Section 50(6) of NDPS Act. 18. Section 50(5) of NDPS Act contemplates that the concerned officials shall search the person as provided under Section 100 of Cr.P.C. Sub Section (7) of Section 100 of Cr.P.C. contemplates that when any person is searched under sub-Section 3 of Section 100 of Cr.P.C., a list of things taken possession of, shall be prepared, and a copy thereof shall be delivered to such person. In the case on hand, the Investigating Officer has not placed any materials to show as to compliance of Section 50(5) of the NDPS Act so also the provisions of sub-Section (7) of Section 100 of Cr.P.C. 19. On careful re-consideration, re-examination and re-appreciation of the evidence on record and also keeping in mind the aforesaid provisions of NDPS Act and the - 16 - CRL.A No.100333/2017 aforesaid decisions of the Hon’ble Apex Court, I do not find any error / illegality / infirmity in the impugned judgment of acquittal. Hence, I answer point No.1 in the negative and for the aforesaid reasons and discussions, with regard to point No.2, I proceed to pass the following: ORDER i. Appeal is dismissed. ii. The judgment of acquittal dated 31.05.2017 passed in S.C. No.27/2013 by the II Additional Sessions Judge, Belagavi is confirmed. Sd/- (G BASAVARAJA) JUDGE Rsh Ct-cmu