- 1 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 1006 OF 2020 (A) BETWEEN: STATE OF KARNATAKA BY ULLAL POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE - 560001 …APPELLANT (BY SRI. B. LAKSHMAN, HCGP) AND: 1. PILTER USMAN @ USMAN AGED ABOUT 37 YEARS, S/O ABDULLA, R/AT IRFAN MANZIL, MEHABOOB ROAD, ANANGOOR, KASARGOD, KERALA STATE-671123. 2. MAAMU @ MAMMU BEARY @ MOHAMMAD BEARY AGED ABOUT 56 YEARS, S/O ISMAIL BEARY, R/AT BEHIND FALKAHA SCHOOL, HOSANAGAR, TALAPADY VILLAGE, MANGALORE TALUK-575001. …RESPONDENTS (BY SRI. KETHAN KUMAR, ADV. FOR R2, R1 SERVED AND UNREPRESENTED.) THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 JUDGEMENT AND ORDER OF ACQUITTAL DATED 31.01.2019 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN SPL.C.NO.145/2018 FOR THE OFFENCE P/U/S 8(c) AND 20(b)(ii)(B) OF N.D.P.S. ACT AND ETC. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT The State has preferred this appeal against the judgment of acquittal passed by the Principal Sessions Judge/Special Judge, D.K., Mangaluru in Special Case.No.145/2018 dated 31.01.2019. 2. The parties to the proceedings would be referred to as per the rank held by them before the Trial Court. 3. The brief facts leading to this appeal are that, the Ullal Police have submitted the charge sheet against the accused for the offence under Sections 8(c) read with 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). It is alleged by the prosecution that on 25.11.2017 in the afternoon, CW.1–Vinayak Toragal, Police Sub-Inspector, had received credible information in the - 3 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 afternoon that by the side of National Highway-66 near Talapady Bus stand, two persons are indulged in sale of ganja. Therefore, CW.1 after bringing the said information to the notice of higher authorities, secured the presence of two Panchas CW.2 and CW.3 along with his other staff i.e., Head constables – CW.4–Mohan, CW.5-Girish, CW.6-Sudheer Shetty, CW.7-Sharief, CW.8-Reji V.J., and CW.9-Sunil, rushed to the said place and apprehended two persons who admitted possession of ganja. CW.1-PSI secured the presence of PW.3- A.C.P. – K.Rama Rao and in his presence effected seizure of contraband under Mahazar Ex.P1 with mobile and cash possessed by them. Thereafter, he has produced the accused before the SHO and submitted report as per Ex.P2. On the basis of that report, case was registered in Crime.No.511/2017. After investigation, Investigating Officer has submitted the charge sheet against the accused under Section 8(c) and 20(b)(ii)(B) of NDPS Act. 4. After filing of the charge sheet, accused No.1 was sent to judicial custody and accused No.2 was granted regular bail by the Trial Court. - 4 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 5. The Trial Court on hearing the charges, framed the charges for the alleged commission of offences, same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried. 6. To prove the guilt of the accused, 3 witnesses were examined as PW.1 to PW.3 and 20 documents were marked as Ex.P1 to P20. Six material objects were marked as M.Os.1 to 6. On closure of prosecution side evidence, Statement under Section 313 of Cr.P.C., was recorded. Accused have totally denied the evidence of prosecution witnesses. But they have not chosen to lead any defence evidence on their behalf. 7. Having heard the arguments on both sides, Trial Court has acquitted the accused. Being aggrieved by the Judgment of Acquittal, the State has preferred this appeal. 8. Learned HCGP Sri B. Lakshman for the State, would submit that the impugned Judgment and order of acquittal passed by the Trial judge is contrary to law and facts and evidence on record. The Trial Court has not properly appreciated the evidence on record in accordance with law and facts. The independent witnesses have supported the case with - 5 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 respect to search and seizure of contraband and on all these grounds he sought for allowing the appeal. 9. As against this, learned counsel Sri.Kethan Kumar for respondent No.2 would submit that the Investigating Officer has not complied with the mandatory provisions of Section 50 and 42 of NDPS Act. The Trial Court has properly appreciated the evidence on record in accordance with law and facts and acquitted the accused and the same does not call for interference. Accordingly, he sought for dismissal of this appeal. 10. I have examined the material placed before this court. It is the case of the prosecution that on 25.11.2017 in the afternoon, CW.1–Vinayak Toragal, Police Sub-Inspector, had received credible information in the afternoon that by the side of National Highway-66 near Talapady Bus stand, two persons are indulged in sale of ganja. Therefore, CW.1 after bringing the said information to the notice of higher authorities, secured the presence of two Panchas CW.2 and CW.3 along with his other staff i.e., Head constables – CW.4–Mohan, CW.5- Girish, CW.6-Sudheer Shetty, CW.7-Sharief, CW.8-Reji V.J., - 6 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 and CW.9-Sunil, rushed to the said place and apprehended two persons who admitted possession of ganja. CW.1-PSI secured the presence of PW.3-A.C.P. – K.Rama Rao and in his presence effected seizure of contraband under Mahazar Ex.P1 with mobile and cash possessed by them. Thereafter, he has produced the accused before the SHO and submitted report as per Ex.P2. On the basis of that report, case was registered in Crime.No.511/2017. After investigation, Investigating Officer has submitted the charge sheet against the accused under Section 8(c) and 20(b)(ii)(B) of NDPS Act. To prove the guilt of the accused, the prosecution has examined 3 witnesses were examined as PW.1 to PW.3 and 20 documents were marked as Ex.P1 to P20. Six material objects were marked as M.Os.1 to 6. 11. In the course of judgment, at paragraphs 12 to 15, the trial Court has observed as under: "12. No doubt, PW.1-Vinayak Toragal-P.S.I. has deposed in his chief-examination chronologically as what has been done by him, as mentioned in mahazar Ex.P.1. Even accepting for a moment that what has been made by PW.1-Vinayak Toragal- P.S.I. as a Gospel Truth. The first and foremost infirmity in this case is that non- - 7 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 compliance of Section 50 of the NDPS Act. The compliance would have been done by PW.1-Vinayak Toragal- P.S.I. himself and not that the Gazetted Officer has to do that. Accepting for a moment that the Gazetted Officer whose services have taken by the raiding party leader and that Gazetted Officer would be the competent person to do it by serving the notice under Section 50 of the NDPS Act, then also, whether that aspect has been done in the case or not, is again unexplained. Reason being that Exs.P.17 and 18 are the two notices said to have been given by PW.3K. Ram Rao, who participated as a Gazetted Officer, no doubt, there is no dispute about he being a Gazetted Officer at that given point of time. If we see Exs.P.17 and P.18 notices signed by PW.3-K Ram Rao, but there is no signature of the accused on these notices having served upon them, but instead, PW.1-Vinayak Toragal-P.S.I. has signed it by putting his seal as well. The Prosecution is relying upon Exs.P.19 and P.20, which are stated to be replies given by the accused in response to Exs.P.17 and P.18 notices. 13. On perusal of these so-called replies admittedly they are not either in the handwriting of accused or in the language known to them. It is a typed matter and these reply notices are not received by PW.3-K. Ram Rao, but are shown to have been received by PW.1-PW.1-Vinayak Toragal-P.S.I. Ullal P.S. It clearly indicates that all these documents Exs.P.17 to 20 have been created just to show that the mandatory provisions have been complied with. PW.3-K.Ram Rao has - 8 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 admitted in his cross-examination that in Exs.P.19 and P.20 he has not made any endorsement having received them and signed it. Ex.P.4 is an intimation to the ACP before whom conducted the raid. Even as per the case of the Prosecution and evidence of PW.1-Vinayak Toragal-P.S.I., this was prepared in the Police Station itself before going for raid, if that be so, the letter is addressed to the Senior Officer of ACP Rank and it should have been under proper known correspondence way of putting with dispatch number of the Police Station of that day, but there is no any dispatch number. There is no endorsement made on this Ex.P.4 by PW.3 having received it. If it were to be original itself that is produced along with the charge sheet, then the Investigating Officer could have collected it from PW.3. There is no signature of PW.3-K. Rama Rao having received this intimation. As per the version of PW.3-K. Ram Rao, Ex.P.8 is the intimation given to ACP South, but the said document Ex.P.8 is not the notice or a requisition given to ACP to come to the spot, but it is the information of conducting of raid and completion of investigation by PW.1-Vinayak Toragal-P.S.I. 14. Now, PW.1-Vinayak Toragal-P.S.I., is deposing in the chiefexamination that after confirmation of the fact that accused possessing ganja, he says in para8 of the chief examination that he called PW.3-ACP- K. Ram Rao and requested him to come over, but through what mode he called him, whether he addressed him a letter is not made clear. But PW.3 in the chief-examination at para-2 says that he had - 9 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 received a written requisition. Neither PW.1 is able to account for the said written requisition addressed to PW.3 nor PW.3 in a position to account for the same having received. Therefore, it all creates a doubt in the mind of the Court regarding the mode of investigation done by PW.1-Vinayak Toragal-P.S.I. As per the mahazar Ex.P.1 accused No.1 had 800 grams of loose ganja and small sachets each weighing 50 grams of ganja in all 400 grams of such sachets. Whereas, accused No.2, he had six sachets of 50 grams each, i.e., totally 300 grams. According to PW.1-Vinayak Toragal- P.S.I., these contrabands were subjected to inventory before the learned Magistrate by giving a requisition as per Ex.P.9. If we see Ex.P.10 Annexure1, quantity marked 'A1' is again subjected to weighment so also, quantity marked with 'M1' which were found weighing 1.240 kgs., and 500 grams respectively. Sample weighing 100 grams each was shown to have been taken as per the report of this Ex.P.12. As rightly canvassed by the learned Counsel for the accused, whether the samples were taken out from the loose quantity or also from the sachets that accused No.1 alleged to have carried and accused No.2 alleged to have carried is not clear. Therefore, even on that ground also, the Prosecution has failed to establish that 'A2' marking and 'M2' marking samples are actually the samples that were taken from the bulk, alleged to have been possessed by the accused No.1 and from the bulk alleged to have been possessed by accused No.2. - 10 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 15. PW.1-Vinayak Toragal in his cross-examination has admitted that, number of establishments are situated in and around Talapady bus stand and people were there, no doubt, there is no bar for the raiding party Police Officer to secure the presence of panchas well in advance. But, when he says and admit that there were other independent members who were the onlookers, he should have made them participants to this seizure mahazar or alteast should have recorded their statement and cited them as witnesses as foolproof to the raid conducted by him. Therefore, under these circumstances, just because PW.2-Jojo K. Joseph, independent witness supported the case of the Prosecution, in view of the infirmity that has been highlighted in the earlier paras and non-compliance of the mandatory provisions of the NDPS Act, the evidence of this independent witness is of no avail in the Prosecution to establish their case. Apart from that the entire case right from conducting raid, registering the case and filing of the charge sheet has been done by PW.1-Vinayaka Toragal, PSI himself. This further creates a doubt about the entire episode that has been projected in Ex.P.1-mahazar and Ex.P.2-report. Such type of investigation has been held to be bad in law by the Hon'ble Apex Court in the recent decision reported in the case between: Mohanlal Vs. State of Punjab. Therefore, I am of the considered view that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. Hence, I answer the above point No.1 in Negative." - 11 - HC-KAR NC: 2025:KHC:45733 CRL.A No. 1006 of 2020 12. On re-appreciation on evidence on record, I do not find any error/illegality in the impugned judgment of acquittal passed by the trial Court. Hence, I proceed to pass the following: O R D E R Appeal is dismissed. Sd/- (G BASAVARAJA) JUDGE NC List No.: 1 Sl No.: 7