- 1 - HC-KAR NC: 2026:KHC:4401 CRL.A No. 1716 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 1716 OF 2019 (C) BETWEEN: NAGAPPA S/O HANUMANTHAPPA, AGED ABOUT 75 YEARS, R/O ELENEERU KOPPA VILLAGE SHIKARIPURA TALUK SHIVAMOGGA - 577 427. …APPELLANT (BY SRI. PRASAD B S., ADVOCATE) AND: STATE OF KARNATAKA BY RURAL POLICE SHIKARIPURA RURAL CIRCLE REP BY SPP HIGH COURT BUILDING BENGALURU - 560 001. …RESPONDENT (BY SMT. N. ANITHA GIRISH, HCGP) THIS CRL.A IS FILED U/S 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 01.08.2019 AND ORDER OF SENTENCE DATED 02.08.2019 PASSED BY THE SPECIAL JUDGE, SHIVAMOGGA IN SPL.(NDPS)C.NO.18/2017 - CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE P/U/S 8(b) R/W 20(a)(i) OF N.D.P.S. ACT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by LAKSHMINARAYAN N Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:4401 CRL.A No. 1716 of 2019 CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT 1. The appellant has preferred this appeal against the Judgment of Conviction and Order on Sentence dated 01st August, 2019 passed in Spl.(NDPS) Case No.18 of 2017 by the Special Judge, Shivamogga (for short "the trial Court"). 2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the trial Court. 3. Brief facts leading to this appeal are that, on 18th May, 2015 at about 02.00 pm, upon receiving the information that one Nagappa of Eleneerukoppa of Shikaripura Taluk has illegally cultivated ganja plants in the backyard of his house, the complainant-CW1 with his staff and panchas i.e. CW2 to CW20, conducted raid on the house of the accused situate at Eleneerukoppa village and found that the accused has illegally cultivated 3 ganja plants that are grown up to the height of 6-8 feet containing flowering and fruiting tops which were weighing 2 kgs. worth of ₹2,500/-, without obtaining any licence or permit from the competent authority in order to make a - 3 - HC-KAR NC: 2026:KHC:4401 CRL.A No. 1716 of 2019 wrongful gain. Thus, the accused has committed the offence punishable under Sections 8(b) read with 20(a) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act"). After filing of charge sheet, the accused appeared before the trial Court and enlarged on bail. Upon hearing on charges, the trial Court has framed the charges against the accused for alleged offences. Same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried. 4. To prove the guilt of the accused, prosecution in all examined six witnesses as PWs1 to 6, marked ten documents as Exhibits P1 to P10 and one material object i.e. sample ganja, was marked as MO1. On closure of prosecution side evidence, Statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the evidence of prosecution witnesses, however, did not choose to lead any defence evidence on his behalf. Having heard the arguments on both sides, the trial Court convicted the accused for the alleged offence and sentenced to undergo rigorous imprisonment for a period of three years with fine of - 4 - HC-KAR NC: 2026:KHC:4401 CRL.A No. 1716 of 2019 Rs.30,000/-, and in default of payment of fine, to undergo simple imprisonment for a period of three months. Being aggrieved by the impugned judgment of conviction and order on sentence, the appellant has preferred this appeal. 5. Sri B.S. Prasad, learned counsel appearing for the appellant, would submit that the investigating officer has not collected any materials to show that the accused is the owner of the property in dispute. The Investigating Officer has produced the Exhibit P9-letter issued by the Panchayath Development Officer, Harogoppa Grama Panchayath, which reveals that Nagappa is not in possession of any House document pertaining to Eleneerukoppa village of Harogoppa Grama Panchayat, and the property in which he is residing, belongs to the Government Lower Primary School. In the cross examination, PW5 has clearly admitted that there are 4 to 5 houses situate near the subject land. He has further admitted that the subject land is a playground. Independent witnesses PW1 and PW2, have not supported in the case of prosecution. Learned counsel would submit that absolutely that there is no evidence to show that the accused has committed the offence. - 5 - HC-KAR NC: 2026:KHC:4401 CRL.A No. 1716 of 2019 However the trial Court has convicted the accused, which is not sustainable under law. On all these grounds, he sought to allow the appeal. 6. As against this, Smt. N. Anitha Girish, learned High Court Government Pleader appearing for the respondent-State, supports the impugned judgment of conviction and order on sentence and sought to dismiss the appeal. 7. Having heard the learned counsel for parties, the point that would arise for my consideration is: "Whether the trial Court is justified in convicting the accused for the offence punishable under Sections 8(b) read with 20(a) of NDPS Act?" 8. I have examined the materials placed before this court. It is the case of the prosecution that on 18th May, 2015 at about 02.00 pm, upon receiving the information that Nagappa of Eleneerukoppa has illegally cultivated ganja in his backyard, the complainant-CW1 along with his staff and panchas, conducted raid on the house of the accused situate at Eleneerukoppa village of Shikaripura Taluk and found that the - 6 - HC-KAR NC: 2026:KHC:4401 CRL.A No. 1716 of 2019 accused has illegally cultivated 3 ganja plants which are grown up to the height of 6-8 feet containing flowering and fruiting tops weighing 2 kgs. worth of ₹2,500/-, without obtaining any licence or permit from the competent authority, in order to make a wrongful gain. Thus, the accused has committed the offence punishable under Sections 8B read with 20A of NDPS Act. The investigating officer has produced the certificate issued by the Panchayat Development Officer which is marked as Exhibit P9. The investigating officer has not collected the assessment extract/RTC extract pertaining to the subject land to show that the land belongs to the accused. The disputed land belongs to Government Lower Primary School. Exhibit P9- letter issued by the Panchayat Development Officer, does not reveal that the alleged backyard is owned or possessed by the appellant. The growing of the three ganja plants is also not shown in this certificate. Hence this certificate will not be of any help to the case of the prosecution to prove that the accused, being resident of Eleneerukoppa, has grown 3 ganja plants in the backyard of his house. - 7 - HC-KAR NC: 2026:KHC:4401 CRL.A No. 1716 of 2019 9. Further, the independent witnesses PW1-Beerappa, and PW2-Shankarappa, who are said to be the attesters to the mahazar-Exhibit P1, have not supported the case of the prosecution. Even in their cross-examination made by Public Prosecutor after treating them as hostile witnesses with the permission of the Court, they have categorically denied the contents of Exhibit P1 and also the statements said to have been recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure, which are marked as Exhibits P3 and P4. When the prosecution has failed to prove that the accused being the owner/possessor of the backyard had grown 3 ganja plants, the question of growing ganja plants by this accused does not arise. The trial Court has failed to appreciate the evidence on record in its proper perspective. Further, the trial Court has mechanically passed the impugned judgment and convicted the accused for the alleged offences without any legal evidence, which is not sustainable under law. Accordingly, the point that arose for consideration is answered in the negative. 10. In the result, I proceed to pass the following: - 8 - HC-KAR NC: 2026:KHC:4401 CRL.A No. 1716 of 2019 O R D E R i) Appeal is allowed; ii) Judgment of conviction and order on sentence dated 01st August, 2019 passed in Spl.(NDPS) Case No.18 of 2017 by the Special Judge, Shivamogga, is set aside. iii) Accused is acquitted of the offence punishable under Sections 20A and 8B of NDPS Act; iv) Fine amount, if any deposited by the accused, shall be returned to him in accordance with law; v) Registry to send the copy of this judgment along with the trial court records to the concerned Court. Sd/- (G BASAVARAJA) JUDGE KBM/LNN List No.: 1 Sl No.: 46