- 1 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 03RD DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL APPEAL NO. 200156 OF 2021 (374(Cr.PC)/415(BNSS)) BETWEEN LAXMAN S/O BALU RATHOD AGE 53 YEARS OCC. BUSINESS R/O JAMBAGI GAMMA TANDA TQ. AURAD DIST. BIDAR - 585 326 ...APPELLANT (BY SRI NANDKISHORE BOOB, ADVOCATE) AND THE STATE THROUGH EXCISE POLICE STATION Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 BIDAR, NOW REP. BY ADDL. SPP HCKB AT KALABURAGI …RESPONDENT (BY SRI. JAMADAR SHAHABUDDIN, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO CALL FOR THE RECORDS OF THE COURTS BELOW AND TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 30.06.2021 AND ORDER OF SENTENCE DATED 01.07.2021 PASSED BY THE SPECIAL JUDGE AND PRINCIPAL DISTRICT AND SESSIONS JUDGE AT BIDAR IN SPECIAL CASE (NDPS) No.13/2016 CONVICTING THE APPELLANT / ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 20(b)(ii)(B) OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT. THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 07.04.2025 AT KALABURAGI BENCH AND COMING ON FOR PRONOUNCEMENT OF ORDER, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 CORAM: HON'BLE MR. JUSTICE S RACHAIAH CAV JUDGMENT (PER: HON'BLE MR. JUSTICE S RACHAIAH) 1. This appeal has been filed by the appellant, being aggrieved by the judgment of conviction dated 30.06.2021 and order on sentence dated 01.07.2021 in Spl. C (NDPS) No.13/2016 on the file of the Special Judge and Principal District and Sessions Judge, Bidar, wherein the accused has been found guilty and convicted for the offences punishable under Sections 8(c), 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’). Factual matrix of the case are as under: 2. The case of the prosecution is that, on 24.02.2013, when C.W.3 – Hanmanth V. Guttedar, Excise Inspector, Raichur, C.W.4 – Sham Savalgi, Excise Deputy Commissioner, Bidar, C.W.7 – Adhinath, Excise Sub- Inspector, C.W.6 – Sanjaykumar Gladson, Excise Police and other staff were on duty on account of the fact that - 4 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 there was local body election and the Code of Conduct was in force. Around 10.30 a.m., on 24.02.2013, they reached Navadgeri cross and took two persons as panch witnesses to assist them in the rounds and they visited Benakanalli village and then went to Chambol village, where C.W.6 – Sanjaykumar Gladson, Exercise Inspector of Aurad Range, joined them along with his staff. As per the averments of the complaint, C.W.3 had received a credible information that one person was standing in Jambagi bus stand carrying ganja in a khaki colour bag. They went to the spot along with the staff and Gazetted officers. As soon as the accused saw the officials, he tried to run away from the place, however, he was apprehended. On enquiry, he disclosed his name as Laxman S/o Babu Rathod of Jambagi Thanda and on further enquiry, he admitted that he was carrying ganja in the bag. Immediately, C.W.3 prepared the reason of record of search without warrant and opened the bag, found the ganja in it and it was weighed on a scale in the nearby kirana shop, the same is weighed 6 kgs. The seizure panchanama was drawn in the presence of the - 5 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 panch witnesses and a case came to be registered in Crime No.30/2012-13 for the offences under Sections 8(c), 20(b)(i), 25 and 29 of the NDPS Act. After conducting investigation, submitted charge sheet. 3. To prove the case of the prosecution, the prosecution examined seven witnesses as PWs.1 to 7 and got marked eight documents as per Exhibits P1 to P8 and also identified two material objects as M.Os.1 and 2. The Trial Court after considering the evidence on record, convicted the accused for the offences punishable under Sections 8(c), 20(b)(ii)(B) of the NDPS Act. 4. Heard Sri Nandkishore Boob, the learned counsel for the appellant and Sri Jamadar Shahabuddin, learned High Court Government Pleader for respondent - State. 5. It is submitted by the learned counsel for the appellant / accused that the impugned judgment of conviction and order on sentence is contrary to law and also facts, and hence, the same is liable to be set aside. - 6 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 6. It is further submitted that, P.W.4 - panch witness has not supported the case of the prosecution. The person who weighed the ganja has not been cited as a charge sheet witness nor was examined by the prosecution. The riding party has not followed the procedure contemplated under Section 42 of the NDPS Act insofar as the conduct of search. P.W.5 – Hanmanth V. Guttedar, being a riding party had not been subjected himself for search and also he did not inform the accused regarding the mandatory requirement that in the presence of whom he has to be searched. The manner in which the Trial Court arrived at a conclusion regarding search and seizure and also the presence of ganja is not proper and appropriate. Hence, the judgment of conviction is liable to be set aside. Making such submissions, learned counsel for the appellant prays to allow the appeal. 7. Learned High Court Government Pleader vehemently submitted that, even though the evidence of P.W.4 is not believable and he has not supported the case of the - 7 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 prosecution, the fact remains that, the official witnesses have supported the case, which is sufficient to record the conviction. There is no infirmity in the judgment passed by the Trial Court, hence, the same may be upheld and the appeal has to be dismissed. Making such submissions, learned High Court Government Pleader prays to dismiss the appeal. 8. Having heard learned counsel for the respective parties and also perused the findings of the Trial Court in recording the conviction, it is necessary to refer the evidence of all the witnesses in detail to evaluate the evidence. 9. P.W.1 is the Excise Guard, who deposed in his evidence that, he along with the official team, went to Navadgeri Cross at about 10.30 a.m., after having received a credible information by C.W.3 – Hanmanth V. Guttedar, Excise Inspector. He along with other officials found that the accused was standing in Jambgi bus stand, holding the bag in his hand and they caught hold of the accused. - 8 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 The accused had ganja of 6 kgs in the said bag. He supported the case of the prosecution. In the cross- examination, it has been elicited that 1 kg sample was taken and the remaining portions were kept separately. 10. Similarly, P.W.2 was working as Excise Inspector, supported the case or the prosecution. 11. P.W.3 was working as Excise Inspector, accompanied C.W.3 in the process of conducting investigation in respect of the case. According to him, a person was standing near Jambgi bus stand carrying ganja in a brown colour carry bag with pink colour flowers printed on it. 12. P.W.4 stated to be an independent witness, has turned hostile and not supported the case or the prosecution in respect of seizure of ganja from the accused. 13. P.W.5 was working as an Excise Inspector, and he is stated to have conducted investigation. According to him, he received an information that one person is in the Jambgi bus stand carrying ganja in a khaki colour bag. - 9 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 He conducted part of the investigation and handed over further investigation to in-charge Excise Inspector Jafar Miya. 14. Similarly, other witness namely P.W.6 who was also working as Excise Inspector accompanied P.W.5, to be part of the team or the squad, to conduct patrolling duty on account of local body elections. He has supported the case of the prosecution. 15. After analyzing the evidence of all these witnesses, the evidence of P.W.3 would indicate that the accused was holding a brown colour carry bag with the pink colour flowers printed on it. However, P.W.5 states that he had received information that one person was holding khaki colour bag having ganja in it., whereas in the seizure mahazar, which is marked as Ex.P1, it is mentioned as khaki colour handbag with rose flower picture. There is a discrepancy in the evidence of P.Ws.3 and 5 and also documentary evidence Ex.P1. Having considered the said discrepancy, it is also relevant to take note of the - 10 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 evidence of P.W.4, who is an independent witness, regarding seizure of the contraband. He has not supported the case of the prosecution. 16. Having considered the inconsistency and also contradictions in the evidence of the witnesses in respect of seizure of alleged ganja, it is also noticed here that the prosecution has not examined any other independent witness to demonstrate that it was seized from the accused. Having considered the inconsistency and also the material contradictions, it is appropriate to set aside the judgment passed by the Trial Court. 17. Hence, I proceed to pass the following order: ORDER i) The Criminal Appeal is allowed. ii) The judgment of conviction dated 30.06.2021 and order on sentence dated 01.07.2021 in Spl. C. (NDPS) No.13/2016 on the file of the Special Judge and Principal District and Sessions Judge, Bidar, is set aside. - 11 - HC-KAR NC: 2025:KHC-K:5140 CRL.A No. 200156 of 2021 iii) The accused is acquitted for the offences punishable under Sections 8(c), 20(b)(ii)(B) of the NDPS Act. iv) Bail bonds executed, if any, stand cancelled. Sd/- (S RACHAIAH) JUDGE BSS List No.: 19 Sl No.: 1