- 1 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 IN THE HIGH COUERT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 100297 OF 2018 (C) BETWEEN: ABBAS ALI AMEEN JATKA @ JATAKAR, AGE: 56 YEARS, OCC: BEGGAR, R/O: MIRAJ, NOW R/O: NEAR BILAL MASID KUDACHI, TQ: RAIBAG, DIST: BELAGAVI. … APPELLANT (BY SMT. SONU SUHEL, ADVOCATE) AND: STATE OF KARNATAKA, THROUGH HIREBAGEWADI POLICE STATION, REPRESENTED BY ITS SPP, HIGH COUERT BUILDING, DHARWAD. … RESPONDENT (BY SRI. M.B. GUNDAWADE, ASPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE JUDGMENT AND ORDER OF CONVICTION DATED 17.09.2018 PASSED BY THE 2ND ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI IN SPECIAL CASE NO.195/2017 FOR THE OFFENCES PUNISHABLE UNDER SEC.20(B), (II)(B) R/W 8(C) OF NDPS ACT AND FURTHER ACQUIT THE APPELLANT, IN THE INTEREST OF JUSTICE. THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA Date: 2025.05.02 16:01:55 +0530 - 2 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE G BASAVARAJA) The appellant accused has preferred this appeal against the judgment of conviction and order on sentence dated 17th September 2018 passed in SC No.197 of 2017 by the II Additional District & Sessions Judge, (for brevity hereinafter referred to as the “trial Court”). 2. For the sake of convenience, the parties herein referred to as per their status and rank before the trial Court. 3. Facts in brief leading to this appeal are that, Hirebagewadi Police submitted charge-sheet against the accused for offence punishable under Section 20(B)(ii)(b) read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (‘NDPS Act’ for short). It is alleged by the prosecution that on 31st March 2017, when Deputy Superintendent of Police, Sri Narayana Bharamani was in station, he received information that the appellant is making preparations to sell Ganja near the bus stop at KK Koppa Cross. It is further alleged that the same was informed to the higher officers and obtained permission to conduct raid and as such, one Baburao Biradar was asked to be present as investigating - 3 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 officer at the time of raid along with panch witnesses. All of them reached the spot. After confirming the identity of the appellant/accused, they have arrested the appellant and made search. It is contended that during the search, the appellant in his shoulder bag was carrying contraband article. It is further alleged that after search, they found Rs.730/- cash and also found 1.450 grams of Ganja and the same were seized under mahazar. Thereafter, they have apprehended the accused along with seizure report with material objects. 4. On the basis of the complaint, case came to registered in Crime No.46 of 2017 for the offences punishable under Section 20(B)(ii)(b) read with Section 8(c) of NDPS Act. Accused appeared before the Court and was enlarged on bail. On hearing charges, the sessions Court framed charge against the accused for commission of offence punishable under section 20(B) of NDPS Act. Charges were read over and explained to the accused in the language known to him. Having understood the same, the accused pleaded not guilty and claimed to be tried. - 4 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 5. To prove the guilt of the accused, in all, seven witnesses were examined by the prosecution as PWs1 to 7, 22 documents were marked as Exhibits P1 to P22 and sample ganja that was packed in two packets were marked as MOs1 & 2 and a mobile phone and cash of Rs.730/- were marked as MOs3 & 4 respectively. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. The accused denied all the incriminating evidences appearing against him, but he has not chosen to lead any defence evidence on his behalf. Having heard the argument on both sides, the trial Court convicted the accused for the offence punishable under Sections 20(B)(ii)(b) read with Section 8(c) of the NDPS Act and sentenced the accused to undergo rigorous imprisonment for a period of five years with fine of Rs.25,000/- and in default of payment of fine, accused shall undergo rigorous imprisonment for a period of six months. Being aggrieved by the judgment of conviction and order on sentence, appellant has preferred this appeal. 6. Miss. Sonu Suhail, learned Counsel appearing for the appellant-accused submits that the very initiation of proceedings against the appellant is illegal and the prosecution - 5 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 has not established the guilt of accused beyond all reasonable doubt. She would submit that the judgment of conviction and order on sentence is illegal and the same is opposed to law and fact and probabilities and circumstances of law and is liable to be set aside. She submits that the prosecution has failed to establish that the accused has committed the offence under Section 20(B) of the NDPS Act. She submits the appellant is innocent of the charges alleged against him. The trial Court has failed to consider these aspects in its proper perspective and has wrongly convicted the appellant for the offences punishable under Section 20(B) of NDPS Act. She would submit that the mandatory provisions of Section 50 of the NDPS Act are not complied with. The learned judge has held that the said provisions are not applicable to the present case, which is contrary to the provisions of the Act and also the law laid down by the Hon’ble Apex Court and of this Court. She would submit that the Judgment passed by the trial Court is illegal and contrary to the well-established principles of criminal jurisprudence, and hence the same is liable to be set aside. She submits that the impugned judgment of conviction and order on sentence is illegal and against the provisions of law, as - 6 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 the alleged search was conducted in violation of Section 50 of NDPS Act and hence the same calls for interference by this Court. She would submit that the eye-witnesses have not supported the case of prosecution. Since the investigating Officer has failed to comply with the mandatory provisions of the Act and also the provisions of Code of Criminal Procedure, the accused is entitled for acquittal. On all these grounds she sought to allow the appeal. 7. As against this, learned Additional State Public Prosecutor Sri M.B. Gundwade appearing for the State, would submit that the trial Court has properly appreciated evidence on record in accordance with law and facts, and absolutely there are no material to interfere with the impugned judgment of conviction and order on sentence and accordingly sought for dismissal of the appeal. 8. Having heard on both sides, and on perusal of the material placed before me, the following points would arise for my consideration: 1. Whether the impugned judgment and Order of acquittal passed by the Sessions Judge suffers - 7 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 from legal infirmities requiring this Court to intercede? 2. What order? 9. My answer to the above points would be: Point No.1: In the affirmative; Point No.2 as per final order Regarding Point No.1: 9. I have examined the materials placed before me. It is alleged by the prosecution that on 31st March 2017, when Deputy Superintendent of Police was in station, he received information as to appellant making preparations to sell Ganja near the bus stop at KK Koppa Cross. Accordingly, permission of the higher officers was obtained to conduct raid and as such one Baburao Biradar was asked to be present as Investigating Officer at the time of raid along with panch witnesses. All of them reached the spot. After confirming the identity of the appellant/accused, they have arrested the appellant and made search. It is contended that during the search, the appellant in his shoulder bag was carrying contraband article. It is further alleged that after search, they found Rs.730/- cash and 1.450 - 8 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 grams of Ganja in the shoulder bag. Thus, the accused committed the aforementioned offences. 10. The Investigating Officer has cited thirteen witnesses, out of them Seven witnesses were examined as PWs1 to PW7. 11. PW1 is the Deputy Superintendent of Police, PW2 is the Second Division Assistant working in Karnataka housing Board, Belagavi. 12. PW1-Narayana Bharamani has deposed as to seizure of properties, i.e. Ganja and other properties from the possession of the accused under mahazar. He has also deposed as to conducting of seizure mahazar. 13. PW2 Siddayya Srimanta Mannur, has deposed in his evidence that he has received call from the police station when he was in office on 31st March 2017 and he was requested to act as Pancha, then he went to Police Station. The Police staff another Pancha left the Police Station at 1:30 PM in a Jeep and proceeded towards KK Koppa Cross. At 3:30 PM a person came there with one shoulder bag. The police apprehended him and upon enquiry, they ceased one packet containing 1.450 grams - 9 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 of ganja from the possession of the accused and also cash of Rs.730/-. This witness is partly treated as hostile witness and was cross-examined by the Additional Public Prosecutor with the permission of the Court, wherein it was elicited that the mobile phone was also seized from the possession of the accused. The same is admitted by this witness. 14. PW3-Manjunath Subba Kalal, said to be the attester to Exhibit P2 has not supported the case of prosecution. 15. PW4-Basavaraj Modagi, Assistant Sub-Inspector of Police who has assisted the PW1, has deposed in his evidence as to seizure of property from the possession which are marked as Exhibits P1 to P4. 16. PW5-Baburao Balegodwda Biradar, Assistant Executive Engineer has deposed in his evidence that on 31st March 2017, when he was in the office, ND-CID Police called him over phone and asked him to come over the Police Station and then he went there. Police have informed him that they have to go for a raid and requested him to act as Pancha. He agreed and went along with police as Pancha in the police jeep. At about 3:30 PM near KK Koppa Cross, they were waiting and - 10 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 after sometime accused came there. Police apprehended and searched him and found cash of Rs.730/- and 1,450 grams of ganja. Police have seized the same and also packed two packets of 50 grams each of Ganja as sample packets and conducted mahazar as per Exhibit P7. 17. PW7-Nazir Mehboob Mulla said to the eye-witness, has not supported the case of prosecution. Even in his cross- examination made by the Assistant Public Prosecutor by treating him as hostile witness with the permission of the Court, he has categorically denied as to the Investigating Officer recording statement under Section 161 of Code of Criminal Procedure which is marked as Exhibit P22. 18. It is the case of the prosecution that the Investigating Officer has seized 1.450 grams of Ganja from the possession of the accused on 31st March 2017 at 1:45 PM as per Exhibit P7. Mahazar is said to have conducted by the police on 31st March 2017 between 15:30 and 17:30 hours. After the seizure of the properties MOs1 to 4, the police submitted a charge-sheet and also produced accused before the Station House Officer of Hirebagewadi Police. On the basis of this - 11 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 report/Complaint, Hirebagewadi Police registered case in Crime No.46 of 2017 and Section 20(B) of NDPS Act and submitted FIR-Exhibit P1 to the Court. On the same day at 10:10 PM, the Investigating Officer has submitted seizure report with PF No.20 of 2017 along with FIR. The property form No.20 of 2017 reveals that the Investigating Officer has submitted the said property form only on 01st April 2017, i.e. on the next day of seizure of property. The delay in submitting the property form to the Court has not been explained by the Investigating Officer. Investigating officer has not offered any explanation in this regard and accordingly he has failed to comply with the mandatory provisions of Section 50(5) of NDPS Act. After the seizure of property from the possession of the accused, the Investigating Officer has not issued any endorsement to the accused as required under sub-section (7) of section 100 of Code of Criminal Procedure. Further, the investigating officer has not explained as to non-compliance of the said provisions and also Section 50(5) of NDPS Act. In the light of the observations and discussions made above, I answer Point No.1 in the affirmative. - 12 - NC: 2025:KHC-D:6974 CRL.A No. 100297 of 2018 Regarding Point No.2: 19. For the aforesaid reasons and discussions, I proceed to pass the following: O R D E R (i) Appeal is allowed; (ii) Judgment of conviction and order on sentence dated 17th September 2018 passed in SC No.195 of 2017 by the II Additional District and Sessions Judge, Belagavi, is set aside; (iii) Accused is acquitted of the charges for the offence punishable under Section 20(B)(ii)(b) read with section 8(c) of the NDPS Act; (iv) The fine amount, if any in deposit, shall be returned to the accused in accordance with law and after due identification. Sd/- (G BASAVARAJA) JUDGE LNN CT:BCK LIST NO.: 1 SL NO.: 22