NAYANESH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned counsel for the petitioners and learned HCGP for the respondent-State. Perused the records.

(2.) Petitioner in Crl.P.No.5659/2019 is arraigned as accused No.4 and petitioner in Crl.P.No.5519/2019 is arraigned as accused No.2 in Crime No.123/2019 of Suddagunteplaya Police Station for the offence under sections 8(c), 21(c), 20(B)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act.

(3.) The allegations are that on 16.7.2019 at about 9.00 am, the respondent police received a credible information that four persons are selling the narcotic drug, LSD and Ganja and in this regard the police went to the particular spot, i.e., near Dharmaram College, Dairy Circle, Hosur Road, Bengaluru. They found four persons by name Vibhesh, Jaffer Salim, Ashif and Nainesh and in the presence of a gazetted officer they made thorough search on the accused persons, they found 0.30 grams weighing 18 paper pieces which are termed as LSD, 10 kgs 200 grams of ganja and also 10 kgs of ganja, one electronic weighing machine, two mobile phones, 20 small plastic covers with them and seized the same. But, in the mahazar, it is not stated as to what is the quantity of ganja that Nainesh was having. Looking to the aforesaid circumstances and seizure, there is no material on record that the police had brought testing kit with them and the 18 paper pieces that were found, whether they are LSDs or not. Of course 0.30 grams is a commercial commodity. But, there must be some evidence in the mahazar that they are LSDs, or in the voluntary statement of the accused. So far as accused No.3 is concerned, no incriminating material is seized from him. Only a mobile phone is seized from him. The common intention amongst accused persons have to be decided during the trial as individual seizure have been made during the custody of the accused. The court has to examine rigor of section 7 of NDPS Act. As rightly contended by the learned counsel for the petitioners that after seizure of the materials, testing has to be done for the purpose of ascertaining the quantity and quality of the drug that was seized from the custody of the accused. Admittedly, the ganja that has been seized from the custody of the petitioner No.1 does not exceed the commercial quantity because it is 10 kg 200 grams. There is no material on record to show that the police had brought a testing kit and examined that the 18 paper pieces were LSDs weighing 0.30 grams.