Natarajan vs State of Karnataka

A.N. Venugopal Gowda, J.—1. The accused, feeling aggrieved by Judgment of conviction under section 20(b)(i) of THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 (hereinafter referred to as "Act") and the order of sentence imposed to undergo rigorous imprisonment for a period of five months and also pay fine of Rs. 5,000/-, in default to undergo simple imprisonment for a period of 15 days, filed Crl.A. No. 10/2010.

Prosecution has filed Crl.A. No. 466/2010 to modify the said order of sentence and to impose appropriate and adequate sentence for offence punishable under section 20(b)(i) of the Act.

Case of the prosecution is, that on 03.09.2005, at about 12 noon, in Sattaramedu Village, Kollegal Taluk, when PW-5 and his staff conducted raid on the house, found the accused to be in possession of 13 kgs 250 gms of ganja Leaves without any permit or licence in contravention of provisions of the Act and as such effected the seizure of ganja leaves under a Mahazar in the presence of Panchayatdars and registered a case in Crime No. 58/2005 for offence punishable under section 20(b)(i) of the Act. After completion of investigation, charge sheet was filed before the Sessions Judge/Special Judge at Chamarajnagar.

The accused having pleaded not guilty, prosecution examined PW-1 to 6 through whom Exhibits-P-1 to P-8 were marked and MO-1 was identified. The incriminating circumstances appearing in the evidence of prosecution witnesses was put to the accused while examining under section 313 of Cr.P.C. The accused having denied the accusation and having submitted that he has no defence evidence, arguments was heard and by a Judgment dated 01.12.2009, the accused was found guilty of the charged offence in Spl. C. No. 2/2006 and was imposed with the abovesaid punishment.

Sri P. Nataraju, learned Advocate contended that there being contravention of Section 42 of the Act and the investigation being faulty, the learned trial Judge has committed error and illegality in finding the accused guilty of the charged offence. Learned counsel contended that the information having been received from PW-3, the information was not taken down by PW-5 and copy thereof was not sent to the superior officer. He pointed that the information was given by PW-3 to PW-5, in the police station itself and in the circumstances, there ought to have been recording of information in writing and sending a copy thereof to the superior official by PW-5. He submitted that, simultaneously the FIR ought to have been sent to the Special Judge. Learned counsel contended that there being non compliance, ratio of law laid down in the decision of Apex Court in the case of Karnal Singh Vs. State of Haryana, reported in 2009 AIR SCW 5265 (1) squarely applies. Learned counsel placed reliance on the decisions in the cases of (i) State of Karnataka Vs. Dondusa Namasa Baddi, reported in , 2010 AIR SCW 5905 and (ii) Rajinder Singh Vs. State of Haryana reported in , (2011) 8 SCC 130. Learned counsel submitted that the appeal filed by the accused is liable to be allowed and consequently appeal filed by the prosecution for modification/enhancement of sentence is liable to be dismissed.

Sri B. Visweswaraiah, learned HCGP on the other hand made submissions in support of finding of guilt recorded by learned trial Judge and submitted that the adequate and appropriate sentence having not been imposed, despite prosecution having proved its case for the offence punishable under section 20(b)(i) of the Act, there is need for allowing of appeal filed by prosecution and dismissal of appeal filed by accused.

Perused the record and considered the rival contentions.

PW-3 is the informant. PW-5 registered the case as per Exhibit P-3. PW-1 is a gazetted officer. Exhibit P-1 is seizure mahazar. PW-2, examined to prove seizure panchanama has not supported the prosecution case. PW-6 carried the seized material to the Forensic Science Laboratory. PW-4 is a police official and was part of the raiding team.

PW-5 has stated that on 03.09.2005, while he was on patrolling duty, PW-3 gave information and requested him to come to the police station and when he went to the police station, PW-3 informed that he has credible information that at Sattaramedu Village in the Farm house of one Sri Nataraju, ganja leaves as having been stored. On receipt of said information, PW-5 gave the message to Dy. SP and took his permission and then went in a Jeep to Kowdalli Village at about 11.30 A.M., along with PW-3, PW-4 and other constables and there he secured PW-1, to witness the raid and consequential seizure at the Farm house of the accused. After search, seizure of ganja leaves was effected, accused was taken into custody of PW-5 and brought to the police station and at about 4 P.M. and report was prepared and case registered against the accused and FIR as per Exhibit P-4 was sent to the court.

In the case of Karnal Singh (supra), Apex court, with reference to requirements of Sections 42(1) and 42(2) of the Act, has held with regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry of such seizure and only in circumstances involving emergency situation the recording and sending information to the official superior may be postponed by a reasonable period, if, that is after the search entry and seizure, such a situation could arise when there is urgency and expediency. In the present case, it is not the case of prosecution that there was urgency and in view of expediency, PW-5 conducted search and affected the seizure without writing down the information received from PW-3. In the aforesaid decision, Apex Court has further held as follows:-

"17(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001".

(emphasis supplied)

Sri B. Visweswaraiah, learned HCGP, in view of the evidence of PW-5, conceded that no information was taken down in writing by PW-5 and that there is no compliance as mandated by the statute. Thus, there is no dispute with regard to information furnished by PW-3 to PW-5 having not been taken down in writing and the superior officer having been furnished with a copy of the same and FIR being simultaneously sent to the Magistrate.

In the case of Dondusa Namasa Baddi (supra), while considering the question with regard to effect of non compliance with the provisions of Section 42 and in particular Section 42(2) of the Act and in identical circumstances, it has been held as follows:

"4. It is not the case of the prosecution that sufficient time was not available to record the information in writing and send it to the superior officer and in the face of it, we are of the opinion that any oral evidence of the police officer will not be in compliance with the provisions of Section 42(2) of the Act".

The present case is identical to one considered by Apex Court in Dondusa Namasa Baddi and hence, it has to be held that learned trial Judge has committed error and illegality in not noticing the material error by investigation officer/PW-5 and in holding the accused guilty of charged offence. The investigation being opposed to law, the accused/appellant cannot be held guilty.

In the result, Criminal Appeal No. 10/2010 filed by the accused is allowed and impugned Judgment holding accused guilty and consequential sentence imposed on him is set aside. As a consequence, Criminal Appeal No. 466/2010 filed by prosecution does not survive for consideration and is dismissed.

Criminal Appeal No. 10/2010 having been allowed, the bail bonds executed by appellant/accused and the surety is cancelled.