MEHABOOB DAULA @ DAUIA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned counsel for the petitioners.

(2.) The petitioners are the accused standing trial for offences punishable under Section 2.0(b)(i)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act', for brevity). It is seen from the facts alleged on the basis of a complaint dated 14.01.2014, whereby credible information is said to have been received at 7.00 a.m. on that day that there were some persons seen to be attempting to sell 'ganja' on MKDK Road of Mandi Mohalla, Mysore City, and the complainant on receiving such information, had proceeded to the spot along with Panchayathdars and his men. They had hid themselves on a corner of MKDK Road and did observe that there were three men and a female who were in conversation at the spot and the female was seen to be counting money. Accused No.4 is said to have paid cash to Accused No.3, who in turn had handed over the bags to Accused Nos.1 and 2. It is at that point of time that the complainant and his men had intervened and had seized articles held by each of those persons and on examination, it was found that the bags which were handed over contained 'ganja' and the cash which was handed over was in a sum of Rs. 19,500/-. Thereafter, a mahazar was drawn up on the basis of the said seizure and a case was said to have been instituted. It is in this background that the petitioners are before this court.

(3.) The petition is filed on two primary grounds. One namely that the substance said to have been seized is shown as 'ganja' but is described in various places in ambiguous language, which would indicate that the substance seized would not conform to the definition of 'ganja' as contained in the NDPS Act. In that, the substance seized is said to consist not only of the flowering tops of the 'ganja' plant, but also of stems and leaves. This is evident from the statement of CW-2 C.K. Somashekar, wherein it is described as 'leaves, stem and flowering tops'. In the First Information report which is dated 14.01.2014, it is indicated as 'flower and stem of ganja plant'. In the charge-sheet, it is shown in the vernacular language as 'ganja soppu' which would indicate that it is ganja leaves and would not conform to the definition of 'ganja'. There has been non-compliance with the mandatory requirement under Section 50 of the NDPS Act. In that, in conducting search and seizure of the material, the accused ought to have been informed of their right to be searched before a Gazetted Officer. This not having been complied with, would be futile to the case of the prosecution as laid down by the Supreme Court, following a catena of decisions rendered earlier in the case of State of Rajasthan v. Parmanand and Another AIR 2014 SC 1384 : 2014(1) Drugs Cases (Narcotics) 14. Hence, he would submit that the entire proceedings are vitiated and the rigmarole of trial would be a futile exercise if the prosecution is not in a position to establish the quantity of ganja seized if one is to proceed on the basis that the substance seized contained not only the flowering tops of the ganja plant but other parts of the plant. The quantity seized would not be discernable unless the flowering tops are segregated from the quantity seized and are made to conform to the definition of the word 'ganja' as contained in the NDPS Act and therefore seeks that the proceedings be quashed.